PUBLIC INTERNATIONAL LAW

UNIVERSITY OF NAIROBI
SCHOOL OF LAW PARKLANDS.

2015
MURIITHI PITAZ MWANGI ©
K.L.S BUREAU (BUREAU YA JESHI)
2/2/2015
 PUBLIC INTERNATIONAL LAW
3RD YEAR 2ND SEM

LESSON ONE
Expectations:
How international law is enforced?
How it affects Kenyan Legal system?
What is the relation between human rights and international law?
Does international law affect me as an individual?
What is the nature of Public International Law or Law of Nations?4725

A. THE NATURE OF INTERNATIONAL LAW

Definition of international law
Public International law:is that body of law which comprises of the principles and
rules of conduct which states feel bound to and do observe in their relations to each
other.It also includes rules of law relating to the functioning of International
organizations, their relations with each other and with states and individuals as well as
certain rules of law relating to individuals and non-state entities in so far as the rights
and duties of such individuals and non-state entities are the concern of the international
communities.

(Lecturer's Explanation; If you look at the two sentences you will see the kind of law we are
talking about. we are saying it comprises of the principles and rules of conduct which states feel
bound to and do observe. What does it mean? We will see when we get into detail that much of
International Law binds by consent. The states have to consent to certain rules of International
law before they are said to be bound by those rules of international law and in particular Treaty
rules. If a state is not a party to a particular treaty, it cannot be bound by the rules of law or the
provisions of that treaty. So we see that state consent is very crucial to the binding nature of
International Law. It is not like municipal Law where you and I have no choice once parliament
has enacted a piece of Legislation we are bound whether or not we consent to it. This is how the
international legal order is.

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We are also talking of rules relating to the functioning of International organizations. The
U.N , The African Union, rules relating to their functioning, rules relating to their powers,
rules relating to their rights and duties form part of Public International Law that will be a
concern with. Individuals, or what somebody called natural beings or natural persons,.. Is the
International community concerned about you and I ? Is the International Community
concerned about how you and I conduct ourselves? Is the International Community concerned
about how you and I are treated by our own states? Alright. We are talking of non-state entities,
there are entities out there that fall short of states. A typical example in Africa being Western
Sahara. Do you know where Western Sahara is? Western Sahara is a non-state entity but it is a
concern of the International Community. The International Community is concerned about the
future of Western Sahara and Western Sahara has been a subject of Several Resolutions of the
U.N General Assembly. Several Resolutions of the U.N Security council. So you will find rules
of I.L that apply to Western Sahara although it is not a state.

This definition covers recent developments which have qualified the traditional
conception of International Law as purely a system of rules and principles that are
applicable to interstate relations on the basis of either state practice or international
multi-lateral treaties.

N/B- There have recently emerged numerous regional institutions and organizations
which have been endowed with international legal personality and are capable of
entering into relations with each other and with states.Such regional institutions and
organizations are governed by regional international law rules as opposed to general
rules which are of universal application.{Lecturer's Explanation: Let me expain that by
giving you a few examples: In Africa we have the African Union. The African Union is a
regional organization. It is a regional International Organization because it was created by the
African states for purposes as it were serving their interests on the African continent. So when
you look at the Constitutive Act of the African Union, that constitutive act of the A.U is I.L.
International why? Because it governs relations among various member states of the A.U. But
that constitutive Act of A.U cannot be applied outside Africa. So it applies only to Africa and
that is why we are saying it has as it were a regional application rather than universal
application. Within Africa itself there are several other organizations we call them sub-region.
The East Africa community is one such ,ECOWAS in West Africa is one such,SADEK in
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Southern Africa is one such ,.You cannot apply the rules and provisions of a treaty regulating
the East Africa community to ECOWAS or SADEK. But that treaty creates international Law
Rules. Those rules are applicable Sub-regional to the East Africa region or sub-region. SADEK
applies to the Southern African Region., ECOWAS to the West Africa Region and so on and so
forth.. That is what we are saying, that these regional Organizations, are governed by Regional
International Law Rules, as opposed to General Rules which are of Universal application. We all
know about the U.N Organization,. Don't we? The U.N Organization is a Universal
International Organization. The rules that govern the power the privileges, immunities of the
U.N are set out in the U.N Charter. The U.N Charter is that body of rules that has got universal
application. This is because the U.N as an International Organization was created as a universal
Organization. That is why right now it has how many member states? Does anybody now?
When it was created in 1945 it had 50 member states. As we speak now in 2015 it has 193
Member states. It is in fact the principle Universal Organization whose rules whose principles
have universal application. Okay}

Further/besides there has been a general international movement to protect human

rights and fundamental freedoms of individuals and the creation of new rules for
punishment of persons who have committedinternational crimes, as well as
management of the environment,management and use of the sea, super adjacent
airspace and the outer space.{ Lecturer's Explanation: You are aware for example: that the
issue of Human Rights and Fundamental freedoms of individuals is no longer an issue within
the domestic jurisdiction of a state. You know that don't you? This is what we are saying that
I.L is now concerned about individuals. The way Kenya treats you and I is not a matter within
the domestic jurisdiction of Kenya. The international community will be concerned and the
International community will intervene. But in fact it is an emerging principal of International
Law called Responsibility to protect. Have you ever heard of Something like that. You see
Kenya is under obligation as much as it is a sovereign state , it has an obligation to protect its
own Nationals. If it fails to protect its own Nationals, on its own territory the International
Community has a right to intervene and say "Hey..Kenya stop.. mistreating, stop killing your
own nationals... Stop doing this to your own nationals and so on and so forth..That is why we
are saying the issues of Human rights and Fundamental freedoms of Individuals is now a matter
of International Concern and it is now a matter of I.L. In your 4th year you shall be doing a

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course called International Human Rights law. Why ? Because Human rights are now an
international issue. Talking of people committing international crimes you are familiar with the
Ocampo six but now Ocampo 2 are you not? Do I need to tell you about how we are concerned
about the management environment? That again is a matter of international concern. how are
we managing our wildlife.. the whole issue of global climate change.. is no longer a matter of
developing countries or developed countries it is an international law issue,the way we use the
Indian Ocean.. There is whole branch of International Law called the Law of the Sea. What we
are saying is that the International law is not just concerned about the rules and principles that
govern state conduct. Initially..Yes '..may be during the 18th and 19th Century I.L was
concerned only about states only.. but now we have now gone beyond that.}

Hence, Contemporary(modern) international law deals with the questions of how

states came into existence, how states may acquire territory ,laws relating to the sea
and the sea bed ,lawsrelating to international law use of force and warfare as well as
the law relating to treaties ,settlement of international disputes laws governing human
rights ,international crimes as well as the laws relating to treatment of aliens. It is
important to note and take account of the dynamic quality of International which has
led and is leading to changes both in the subject of international law and its contents.

{Lecturer's Explanation:How states may acquire territory e.g. how did Kenya obtain the title to
what we claim as Kenya, because before 1963 Kenya was not a state or international legal
person. . The law relating the sea, laws relating to use of force and warfare (International
Humanitarian Law); The 1949 Geneva Convention of the laws of war. Under this convention
even if you are my enemy and am fighting you; am supposed to be “sympathetic”. If you are
injured am under obligation to offer medical assistance. There are rules relating to the treatment
of POW.Cluster bombs are illegal. Inter state treaties e.g. bilateral and multilateral.Settlement of
dispute under the ICJ e.g. Kenya and Uganda on the Mingingo.Kenya acquiesced .Kenya cannot
take Uganda to ICJ because ICJ does not have compulsory jurisdiction. When we accepted the
jurisdiction of the ICJ in 1964 we excluded the dispute relating to common wealth. International
Crimes we are all aware of the Ocompo 6 now 2 (ICC). Laws in treatment of aliens how are they
treated e.g. do we give them national treatment or preferential treatment e.g. if government
nationalize all industries what will happen? It is not only the treatment of aliens but their
property as well.}
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Private international law or the conflict of laws vs Public International
Law(comparison) Conflict of Laws has little to do with Public International Law.What
then is Private International Law?The Conflict of laws, is that part of the private law
of a country which deals with cases having a foreign element, that is to say, contact with
some system of law other than that of the forum state.

Such a contact may exist for instance because a contract was made or has been
performed in a foreign country or because a tort was committed there or because some
property was situated there, the parties to a particular case or contract are non-nationals
of the forum state .{ Lecturer's Explanation For example:.divorce cases, where for example a
Chinese couple marry in China and then they come to reside in Kenya ,and as I normally say,
Later loves goes out through the window and the man sees a beautiful Kenyan Lady and wants
to spend the rest of his life with her meaning he has to divorce his wife.They appear before a
Kenya court and the question before the judge is which law does he apply? Does he apply
Kenyan law as the parties are in Kenya jurisdiction or China law in regard to marriage as both
are Chinese Nationals and married pursuant to Chinese laws. Such clearly manifests the said
Conflict of laws. or another example : You are an entrepreneur you want to expand the
business may it transportation that you are engaged in . You fly from Nairobi to the Seattle in
Washington the U.S the home of Boeng. You want to buy a Boeng 787 Dreamliner. The
contract is entered into in the U.S .. Boeng company under the Contract is supposed to deliver
the first 787 dreamliner in 1st January 2016.

You come 1st January 2016 and there is no aircraft delivered..march none, June none . Do you
file your, suit in the High court of Kenya Nairobi for remedy against Boeng, or where do you go
to file your suit? It becomes a choice of law issue.

You are a Kenyan the contract was entered into in the U.S . Do you file your suit for claim
against Boeng at High Court Nairobi in Kenya .What Foreign Law issues will be involvesuit? If
Kenya is the forum state or the state where you have filed your suit.. the question will be whether
that contract you entered into with Boeng in the U.S is enforceable under Kenyan Law? before
even you are told we have jurisdiction? is it even enforceable under Kenyan Law what did the
contract say? Did it say in the event of dispute Kenyan or U.S Law will apply.. In so far as the
Kenyan Courts are concerned there is an element of foreign law that element of foreign law is

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how it is this way. The U.S law becomes foreign in so far as Kenya the Forum state is concerned
where the suit is being. You have to make a choice where to file the suit if the contract does not
say anything...}

The Conflict of laws is a necessary part of the domestic law of each country because
different countries have different legal systems containing different rules while Public
International Law seeks primarily to regulate relations between sovereign states
amongst inter se (themselves) as well as other international law persons.

N/B- In other words, Public International Law is at least in theory the same
everywhere while rules of conflict of laws are different from one country to another.

Historical Developments of Public International law

The Modern/Contemporary system of Public International Law in its present order

and structure is normally traced back to a multi-lateral treaty calledThe Peace of
Westphalia 1648 which marked the end of the 30years war in Europe. However, it was
not then that International relations started. This was because evidence was produced
of beliefs of rules and procedure regarding international law dates back over 5000 years.

From the earliest times, rules of conduct to regulate relations between independent
communities were felt necessary and emerged from mutual relations of those
communities in their usual relationship.Treaties, immunities of diplomatic envoys and
certain laws and usages of war emerged in the Middle Ages before the dawn of
Christianity e.g. in Egypt and India.

Around 2100BC, a solemn treaty was signed between the rulers of Lagash and Umma,
the city-states situated in the area known to historians as Mesopotamia. It was inscribed
on a stone block and concerned the establishment of a defined boundary to be respected
by both sides under pain of alienating a number of Sumerian gods.

The next major instance was in 1400BC where the Egyptian Pharaoh Ramses II
concluded a Treaty of Peace Alliance and Extradition with the King of Cheta which
recognized territorial sovereignty over certain areas of each ruler and provided for the

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extradition of refugees and the exchange of diplomatic envoys.{Lecturers Explanation We
shall see later that diplomatic immunities of foreign diplomats as we know it today did not start
yesterday, it started long time ago because diplomats were regarded as messengers and as
messengers they enjoyed certain privileges and rights in order to facilitate their work.}

The role of ancient Israel must also be noted. A universal ethical stance coupled with
rules relating to warfare was handed down to other peoples and religions and the
demand for justice and a fair system of law founded upon strict morality permitted the
thought and conduct of subsequent generations.For example, the Prophet Isaiah
declared that sworn agreements, even where made with the enemy, must be performed.
Peace and social justice were the keys to man’s existence, not power.There were also
historical cases of recourse to international arbitration and mediation on registration in
ancient Greece, China and the early Islamic world.

However, the predominant approach of ancient civilizations was geographically and

culturally restricted. There was no conception of an international community of states
co-existing within a defined framework.

The scope for any ‘international law’ of states was extremely limited and all that one
can point to is the existence of certain ideals, such as the sanctity of treaties, which have
continued to this day as important elements in society. But the notion of a universal
community with its ideal of world order was not in evidence.

In the period of the Greek city states there developed some international law though
regionally limited composed of customary rules which had crystallized into law from
long standing usages followed/observed by these states not only interse(among
themselves), but also as between them and the neighboring states.{NB: One of the
sources of International Law is customs and customs develop from state practice.}
Underlying the rules were deep religious influences characteristic of an era in which the
distinctions between law, morality, justice and religion were not sharply drawn. No
sense of a world community can be traced to Greek ideology in spite of the growth of
Greek colonies throughout the Mediterranean area. This was left to the able
administrators of the Roman Empire.

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The Roman civilization before its period of expansion and conquest made treaties with
Latin cities under which Latins and Romans were given rights in each other’s court and
promised mutual cooperation. The Romans had a profound respect for organization
and the law. The law knitted together their empire and constituted a vital source of
reference for every inhabitant of the far flung domain.

When/once Rome became an empire, the Romans organized their relations with
foreigners on the basis of two principles:

 Jus Fetiale
 Jus Gentium.

Jus Fetialeconsisted of religious rules which governed Romans external relations and
formal declarations of war which interalia(among other things) recognized the
inviolability of Ambassadors and was at the origin of the distinction between just and
unjust war. s

On the other hand, Jus Gentium-was a Roman solution to the necessity of regulating
legal relations between Roman citizens and foreigners as Rome expanded. Jus Gentium
simplified rules to govern the relations between foreigners and citizens.

A special magistrate Praetor Peregrinus was appointed in 242 BC (whose function it

was to oversee all legal relationships, including bureaucratic and commercial matters,
within the empire) and created law called Jus Gentium acceptable to both roman
citizens and foreigners. This law was the 1 st truly international law although it
essentially regulated relations between private individuals. The law was based on the
commercial law in use in the Mediterranean trade which was calledJus Civile which
was applicable to relations between Roman citizens and was less formalistic and based
on the principles of equity and good faith. (Jus Civile-Commercial law used in the
Mediterranean trade}

The distinction between Jus Civile and Jus Gentium was erased when Roman
citizenship was granted to all male inhabitants of the empire in 212 A.D. However, Jus
Gentium did not disappear but became an essential part of Roman law and greatly
influenced all European Legal Systems and through them Public International Law.
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From Ancient Rome, international law also inherited the Doctrine of theUniversal law
of Nature known as natural law which was developed by the Stoic philosophers of
ancient Greece and adopted by the Romans.

This doctrine considered law or recognized lawas the product of right reason
emanating from assumptionsabout the nature of man and society. Because natural law
is the expression of right reason inherent in nature and man and discoverable by reason,
it applies universally and it is unchanging and everlasting.

Reference must also be made to the growth of Islam. Its approach to International
relations and law was predicated upon a state of hostility towards the non-Muslim
world and the concept of unity, Dar al-Islam, as between Muslim countries. Generally
speaking, humane rules of warfare were developed and the ‘peoples of the book’ (Jews
and Christians) were treated better than non-believers, although in an inferior position
to Muslims. Once the period of conquest was over and power was consolidated, norms
governing conduct with non-muslim states began to develop. The law dealing with
diplomats was founded upon notions of hospitality and safety (aman), while rules
governing International agreements grew out of the concept of respecting promises
made.

The Middle Ages were characterized by the authority of the organized Church and the
comprehensive structure of power that it commanded. All Europe was of one religion,
and the ecclesiastical law applied to all, notwithstanding tribal or regional affiliations.
For much of the period, there were struggles between the religious authorities and the
rulers of the Holy Roman Empire.

These conflicts were eventually resolved in favour of the Papacy, but the victory over
secularism proved of relatively short duration. Religion and a common legacy derived
from the Roman Empire were strongly unifying influences, while political and regional
rivalries were not. But before a recognized system of international law could be created,
social changes were essential.Of particular importance during this era was the authority
of the Holy Roman Empire and the supranational character of canon law.

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In the middle ages, two sets of international law namely Lex Mercatoria(Law of
Merchant) and the Maritime Customary Law developed to deal with problems that
transcended national boundaries.

With the revival of trade in the 10th century, merchants started to travel all throughout
Europe in order to sell, buy and place orders for various goods. These commercial
activities required the establishment of a common legal framework. Out of necessity,
the European merchants created their own rules of conduct on fair dealing which
formedLex Mercatoria(law of merchants). During the same time, Maritime Customs
and Usages were formed. The High seas were no man’s land but with the development
ofMaritime Commerce it became necessary to establish some rules and standards.

The rules of the high seas were based on the Rhodian Sea Law, a codification
undertaken under the Byzantine Empire were compiled into widely recognized
collections that became accepted all through Europe. The middle ages also saw the rise
of nation states that led in turn to the process of the formation of rules of customary
international law from usages and practices followed by such states in their mutual
relations.For instance, there were the microscopic Italian states that maintained
diplomatic relations with each other and with the outside world that led to the
development of a number/certain rules relating to diplomatic envoys and their
inviolability.

Such commercial and maritime codes while at this stage merely expressions of national
legal systems were amongst the forerunners of international law because they were
created and nurtured upon a backcloth of cross national contacts and reflected the need
for rules that would cover international situations.

Such rules, growing out of the early Middle Ages, constituted the seeds of international
law, but before they could flourish, European thought had first to be developed by that
intellectual explosion known as the Renaissance.This complex of ideas changed the face
of European society and ushered in the modern era of scientific humanistic and
individualistic thought.

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The collapse of the Byzantine Empire centred on Constantinople before the Turkish
armies in 1453 drove many Greek scholars to seek sanctuary in Italy and enliven
European’s cultural life.

The introduction of printing during the 15th century provided the means to disseminate
knowledge, and the undermining of feudalism in the wake of economic growth and the
rise of the merchant classes provided the background to the new inquiring attitudes
taking shape.

Europe’s developing self-confidence manifested itself in a sustained drive overseas for

wealth and luxury items. By the end of the 15th century, the Arabs had been ousted from
the Iberian Peninsula and the Americas reach.

The rise of the nation-states of England, France and Spain, in particular, characterized
the process of the creation of territorially consolidated independent units, in theory and
doctrine, as well as in fact. This led to a higher degree of interaction between sovereign
entities and thus the need to regulate such activities in a generally acceptable fashion.
The pursuit of political power and supremacy became overt and recognized, as
Machiavelli’s The Prince (1513) demonstrated.

The city-states of Italy struggled for supremacy and papacy too became a secular
power. From these hectic struggles emerged many of the staples of modern
international life; diplomacy, statesmanship, the theory of the balance of power and the
idea of a community of states.

Notions such as these are immediately appreciable and one can identify various
manoeuvres for political supremacy. Alliances, betrayals, manipulations of state
institutions and the drive for power are not unknown to us. We recognize the roots of
our society.It was the evolution of the concept of an international community of
separate, sovereign, if competing, states, that marks the beginning of what is
understood by international law.

The Renaissance bequeathed the prerequisites of independent, critical thought and a

humanistic, secular approach to life as well as the political framework for the future.
But it is the latter factor which is vital to the subsequent growth of international law.
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The Reformation and the European religious wars that followed emphasized this, as did
the growing power of the nations. In many ways these wars marked the decline of a
continental system founded on religion and the birth of a continental system founded
on the supremacy of the state.

Throughout these countries the necessity was felt for a new conception of human as
well as state relationships. This search was precipitated, as has been intimated, by the
decline of the Church and the rise of what might be termed ‘free-thinking’. The theory
of international law was naturally deeply involved in this reappraisal of political life
and it was tremendously influenced by the rediscovery of Greco-Roman ideas. The
Renaissance stimulated a rebirth of Hellenic studies and ideas of Natural Law, in
particular, became popular.

Thus, a distinct value-system to underpin international relations was brought into being
and the law of nations was heralded as part of the universal law of nature.

With the rise of the modern state and the emancipation of international relations, the
doctrine of sovereignty emerged. This concept, first analysed systematically in 1576 in
the Six Livres de la Republique by Jean Bodin was intended to deal with the structure of
authority within the modern state. Bodin, who based his study upon his perception of
the politics of Europe rather than on a theoretical discussion of absolute principles,
emphasized the necessity for a sovereign power within the state that would make the
laws. While such a sovereign could not be bound by the laws he himself instituted, he
was subject to the laws of God and of nature.

The idea of the sovereign as supreme legislator was in the course of time transmuted
into the principle which gave the state supreme power vis-à-vis other states. The state
was regarded as being above the law. Such notions as these formed the intellectual basis
of the line of thought known as positivism which will be discussed later.The early
theorists of international law were deeply involved with the ideas of Natural law and
used them as the basis of their philosophies. Included within that complex of Natural
Law principles from which they constructed their theories was the significant merging
of Christian and Natural law ideas that occurred in the philosophy of St. Thomas

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Aquinas. He maintained that Natural law formed part of the law of God, and was the
participation by rational creatures in the Eternal law.

It complemented that part of the Eternal Law which had been divinely revealed. Reason
declared Aquinas, was the essence of man and thus must be involved in the ordering of
life according to the divine will. Natural law was the fount of moral behavior as well as
of social and political institutions and it led to a theory of conditional acceptance of
authority with unjust laws being unacceptable. Aquinas’ views of the late thirteenth
century can be regarded as basic to an understanding of present Catholic attitudes, but
should be confused with the later interpretation of Natural Law which stressed the
concepts of natural rights.

It is with such an intellectual background that Renaissance scholars approached the

question of the basis and justification of a system of international law. Maine, a British
historical lawyer, wrote that the birth of modern international law was the grandest
function of the law of nature and while that is arguable, the point must be taken.
International law began to emerge as a separate topic to be studied within itself,
although derived from the principle of Natural law.

Founders of modern International Law.

During the same time, a number of jurists began to consider a revolution of the
communities of independent sovereign states and to write about different problems of
the law of sovereign states and to write about different problems of the law of
nationsrecognizing the necessity of a body of rules to regulate certain aspects of
relations between such states.

Where there were no established customary rules, these jurists devised and fashioned
working principles by reason of analogy. Not only did they draw from the principles of
Roman laws, but they alsohad recourse from the precedence of ancient history,
theology, canon law and the semi theological concept of the law of Nature.

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Among these early jurists were :Francisco De Vittoriaof the Spanish school of
international law (1480-1546)(Professor of Theology at the University of Salamanca)
whose treatiseReflectionis de Indis NoviterInventis confirmed the universal validity of
international law and its application in the America.

The Italian school of Law representative calledAlberico Gentili (1552-1608) who

conceived the Law of Nations as a universal and natural law applicable between
independent pre states and free common wealth. Francisco’s lectures were preserved by
his students and published posthumously. He demonstrated a remarkably progressive
attitude for his time towards the Spanish conquest of the South American Indians and
contrary to the views prevalent until then, maintained that the Indian peoples should be
regarded as nations with their own legitimate interests.

War against them could only be justified on the grounds of a just interests. War against
them could only be justified on the grounds of a just cause. International law was
founded on the universal law of nature and this meant that non-Europeans must be
included within its ambit.

However, Vittoria by no means advocated the recognition of the Indian nations as equal
to Christian states of Europe. For him, opposing the work of the missionaries in the
territories was a just reason for war, and he adopted a rather extensive view as to the
rights of the Spaniards in South America. Vittoria was no liberal and indeed acted on
behalf of the Spanish Inquisition, but his lectures did mark a step forward in the right
direction.Suarez (1548-1617), was a Jesuit and Professor of Theology and deeply
immersed in medieval culture. He noted that the obligatory character of international
law was based upon Natural Law, while its substance derived from the Natural Law
rule of carrying out agreements entered into.

Hugo Grotius (1583-1645), a Dutch scholar considered the greatest of the early writers
of international law. His treatise De Jure Belli ac Pacis(law of war and peace) which 1st
appeared in 1625 has been acknowledged as the 1stcomprehensive and systematic
treatise of positivist's international law.

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One central doctrine in Grotius treatise was the acceptance of the law of nature as an
independent source of the rule of law of nations apart from customs and treaties. His
work was continually relied upon as a point of reference and authority in the decisions
of courts and text books and later writings of standing .Besides his earlier work'More
Liberum' which translates to Free sea published in 1609 distinguished Grotius as the
historic standard bearer of the freedom of the seas.

Grotius finally excised theology from international law and emphasized the irrelevance
in such a study of any conception of a divine law. He remarked that the law of nature
would be valid even if there were no God. A statement which although suitably clothed
in religious protestation was extremely daring. The law of nature now reverted to being
founded exclusively on reason. Justice was part of man’s social make-up and thus not
only useful but essential.

Grotius conceived of a comprehensive system of international law and his work rapidly
became a university textbook theological distinction between a just and an unjust was, a
notion that was soon to disappear from treaties on international law, but which in some
way underpins modern approaches to aggression, self-defence and liberation.Besides
his earlier work Mare Liberum (1609) distinguished Grotius as the historic standard
bearer of the doctrine of the freedom of the seas.

In his work, Grotius argued that it would be against a natural law to rule over the sea
because no country was able to monopolize control over the ocean because of its
immensity, lack of stability and lack of fixed limit. Therefore, Grotius opposed the
‘closed seas’ of the Portuguese that was later elucidated by the English writer John
Selden and emphasized instead the principle that the nations could not appropriate to
themselves the high seas. They belonged to all. It must, of course, be mentioned,
parenthetically, that this theory happened to accord rather nicely with prevailing Dutch
ideas as to free trade and the needs in expanding commercial empire.

However, this merely points up what must not be disregarded, namely that concepts of
law as of politics and other disciplines are firmly rooted in the world of reality and

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reflect contemporary preoccupation. No theory cultural and social environment. To
ignore this is to distort the theory itself.

Read: Malcolm N. Shaw page 21 to 35.

The Evolution Of International Law during the two centuries after Grotius was
marked by the final revolution of the modern state system in Europe a process that was
greatly influenced by the Peace of Westphalia 1648. The major countries of Europe had
been involved in the war which had started in 1618 for religious reasons namely the
struggle between Catholic and Protestant countries but had soon turned out to be an all-
out struggle in military and political hegemony in Europe. The treaties of peace were
signed in the Westphalia towns of Munster and Osnabruck but are considered in law as
one single instrument. The treaties constitute a watershed in the evolution of the
modern international legal community and legal order.

First, they recognized Protestantism at an international level and consequently

legitimized the existence of states based on Calvinism and Lutheran faith. Hence forth,
even from the point of view of religion, it was recognized that the state was
independent of the church.

Secondly, the treaty granted the members of the Holy Roman EmpireThe Jus
Foederationis, that is the right to enter into alliances with foreign powers and to wage
war provided those alliances or wars were neither against the empire nor against public
peace and the treaty.Accordingly, a number of small countries were upgraded to
members of the international community with almost sovereign rights.

Thirdly, the treaties crystallized a political distribution of power in Europe that saw the
decline in the Church in Europe and the de-facto disintegration of the empire and the
birth of an international order based on a multiplicity (plurality) of independent
sovereign states recognizing no superior powers or authority over them.

Accordingly, the Peace of Westphalia( treaties) recognized:the principles of sovereignty,

territorial integrity and equality of states as independent members of an international
system[over and above states there is no other authority,China equal to Nauru, Tuvalu,

Page 17
Maldives]Each country carries one vote regardless of power, population) (23% US/
0.04% Kenya’s contribution to UN budget)

The period from the Peace of Westphalia to the congress of Vienna in 1815 is
considered as a period of formation of Classical International Law. This period
witnessed the breakup of the feudal state system and the formation of a society into
free nation states.The congress of Vienna ended 25 years of the Napoleonic War in
Europe.

It was convened by four European powers which had defeated Napoleon with the main
objective of establishing a balance of powers of political forces in Europe which would
ensure lasting peace and maintain a status quo in Europe by repressing political
revolutions.

International law greatly expanded during the rest of the 19th Century mainly due to the
rise of powerful new states in and outside Europe, the expansion of European influence
overseas and modernization of the world transport, the greater destructiveness of
modern warfare and influence of new inventions.

All these made it urgent for international societies of states to acquire a new system of
rules which would regulate in an ordered fashion conduct of international states affairs.
There was remarkable development in the law of war and neutrality and great increase
in adjudications in international arbitral tribunals provided an important newsourceof
rules and international law principles.Besides, states commenced to acquire the habit of
negotiating of general treaties in order to regulate the affairs of mutual legal concerns.

Throughout this period, international law was based on five principles namely;

i) Sovereignty
ii) Balance of powers

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 iii) Legitimacy of government
iv) Nationality
v) Equality
Other important developments took place in the 20th century;

 The Permanent Court of Arbitration (P.C.A) was established by the Hague

conferences of 1899 and 1907.

 Following the first world war, The League Of Nations was created as an
international organization designed to prevent the recurrence of worldwide armed
conflicts.

 Permanent Court of International Justice: was set up in 1921 as an authoritative

International Judicial tribunal-

 The league and the court were succeeded in 1946 by the UnitedNations
organization and the International Court of Justice respectively established
afterWorld WarII.

 There was also the creation of Permanent International Intergovernmental

organizations whose functions are in effect with those of world government
interests of peace of the world and human welfare such as: International Labour
Organization(I.L.O), Food and Agricultural Organization(F.A.O), International
Telecommunication Union(I.T.U), World Health Organization(W.H.O).

The scope of international law was also expanded to cover not only every kind of
economic and social interests affecting states but also the vast and complex areas of
international concerns such as: law of the sea, environmental laws, nuclear energy
laws, international crime, communications laws and human rights and interests
affecting states.

As a result, the influence of writers(e.g. Grotious) has tended to decline with the
consequence that international law rules have been positively tailored to cater for
modern developments in technology, economic exigencies and social economic and
political affairs of the world.

Page 19
The last century also witnessed a great number of multilateral treaties laying down
rules to be observed in interstate relations as well as rules of arbitration to settle
international disputes. At the same time International Court of Justice(I.C.J) has made
an important contribution to the development of international law and Jurisprudence.
Similarly, the international law commission since its creation/inception in 1947 by the
UN General Assembly has worked on the codification and progressive development of
international law thereby ensuring greater certaintyand stability.

Rules of customary international law have also been codified and consequently given
greater precision and made more specific.

Customary International lawconsists of rules of law derived from the consistent conduct of
states acting out of belief that the law required them so to act that way. It can be discerned by a
widespread repetition by states of similar international acts over time.

Finally, the last century also witnessed massive participation of the newly independent
states of Africa, Asia and the Pacific in the International Law undertakings.

From a relatively small membership of 42 states in 1919 when the League of Nations
was created, the UN currently has a membership of 193 states with South Sudan being
the latest member.

These newly independent states realized that many international law rules did not fully
respond to their needs and reflect their concerns and hence taken an active part in the
readjustment of the old rules to the new economic and political realities.

N/BThe impact of this new development is reflected in the content and scope of
contemporary international law namely, the shift from Euro centrism to Universalism
thereby diminishing the Western European Supremacy over International Law.

END OF LESSON ONE.

Note that these notes are added professor's explanations and they are not a substitute
to attending class lectures. Do so at your own peril.

At the time of the formation league of nations the following African Countries were members Ethiopia
Liberia and South Africa.
Page 20
LESSON TWO .
Introduction and some explanation before the start of the lesson:
 U.N security council is not a legislative body neither is the general assembly.
 U.N security council makes recommendations and G.A deliberates on matters.
QUESTION: What is the basis of obligation under international law ?
Why do states feel obliged to comply with International Law?
Basis of obligation in Public International Law.
For quite a long time there has existed the controversy as to whether or not
International law is true law or not. Some writers have argued that International Law
is positive law whereas others have maintained that International Law is only a body of
rules of International morality.{Lecturer'sExplanation: In jurisprudence class we read
of :H.L.A HART: The concept of law ;primary rules and secondary rules. Where does
International Law belong according to that? Is it binding?}
One theory which has enjoyed wide acceptance is the positivists’ theory that holds that
International Law is not true law.(Some explanation :The major protagonist of this
theory as per jurisprudence was John Austin .{Lecturer's Explanation:John Austin 19th
century is the main protagonist of this theory.}Others who have questioned the legal basis

Page 21
of this theory are English philosophers like Thomas Hobbes, Jeremy Bentham and the
German jurist Samuel Von Pufendorf.
Austin argued that International Law is not true law because it has no sovereign.
{Lecturer's Explanation: Remember his argument about a determinate sovereign.Austin looks
at International Law and he sees that in the International community/International legal order
that there is no superior authority over and above state. States are sovereign by themselves and
hence he argues that International law has no sovereign so it cannot be true law. At
international Level the primary law maker is the states.}
His attitude towards International Law was influenced by his theory of law in general.
This is because he defined “laws properly so called" as commandsof a sovereign.
According to him a sovereign is a person who received the habitual obedience of the
members of an independent political society and who in turn did not owe such
obedience to any person.
Rules of international law did not qualify as rules of positive law by this test{Lecturer's
Explanation : looking at rules of International law there may be commands but there is no
sovereign} and not being commands of any sort were placed in the category of “laws
improperly so called.” According to Austin International Law was positive
International Law morality only analogous to rules binding a club or a society. Austin
further described International Law as consisting of “opinions or sentiments among
nations generally.”
Positivism has been objected to a number of grounds:
i) Modern historical jurisprudence has discounted the force of Austin’s general theory
of law because there is no legal system that conforms to Austin's concept. Modern
jurisprudence has shown that in many communities without a determinate sovereign
legislative authority a system oflaw was enforced and being observed and that such
law did not differ in its binding operation from the law of any state with a true
legislative authority.(e.g Njuri Ncheke)
ii) Austin’s views however right for his time are not true of the contemporary
international law. In the last one century or so a great number of International Law
rules, has come into existence as a result of law making treaties and conventions and
the proportion of rules of customary International Law has correspondingly

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 diminished.{Lecturer's Explanation: If you look back into the sphere of international
relations , there isn't any aspect of international relations that is not as it were governed by a
treaty or convention. All the way from diplomatic relations extend to diplomatic envoys,
consular envoys, human rights, environment, seas and portions of the world, the outer space
e.t.c there are treaties and conventions governing the conduct of states in all those things.
That's why we are saying that the last one century has seen as it were coming into existence a
large number of International law}Even if it be true that there is no determinate
sovereign legislative authority in the international field, the procedure for the
formulation of these rules by means of International conferences or through
existing international organs ispractically as settled and efficient as any state
legislative procedure.
{ Lecturer's explanation: We had talked about international law commission, created in
1946 by the U.N General assembly and given the mandate of codification and progressive
development of International Law and that internationallaw commission, has led as it
were in the adoption of several treaties on various subject areasE.g. International
organizations like : International labour organization( I.L.O) role in coming up with rules
and regulations in labour relations field and you will notice that the procedure in I.L.O[of
coming up with any rules(legislative procedure) ] is as settled as any other legislative
procedure of any state also other organizations like the World Health
Organization(W.H.O) ,F.A.O e.t.c is the same also. Even The U.N General Assembly itself
when the International Law Commission has agreed on a draft text, that text is brought before
the U.N General Assembly and if it is satisfied that ,that is what it intended to have it
convenes a conference and negotiates /adopts /ratify this convention /treaty. Hence the
procedure of making laws in the International Field is settled and very clear and nobody
questions it/that.}

iii) Thirdly,Questions of international law are always treated as legal questions by

those who conduct international business in various foreign offices or through the
various existing international bodies. The agencies do not consider international law
as merely a moral code. In his Oxford lectures in 1890, Sir Fredrick Pollock sums up
the issue in this way namely “if international law were only a kind of morality, the

Page 23
 framers of state papers concerning foreign policy would draw all their strength on
moral arguments. But as a matter of fact, this is not what they do. They appeal not to
the general feeling of moral rightness, but to precedents, treaties and to opinions of
specialists. They assume the existence among statesmen or publicists of a series of
legal as distinguished from moral obligations in the affairs of nations.” {lecturer's
Explanation : He expoundsthisby giving an example of last year(2014) when Somalia filed an
application before the International Court of Justice against Kenya.This was in regard to
boundary between Kenya and Somalia relating to maritime zone of the Indian Ocean. When
one looks at that application by Somalia one observes that they are relying on international
law(U.N Convention on the law of the sea 1982).
Consequently, Kenya has been called upon to prepare a defence(what we call in international
litigation counter- memorial) when it does, it will not raise questions on rules of morality, it
will raise questions on rules of international law. For example; it may say yes ,we are justified
in having the maritime boundary where it is on the basis of this Article of the U.N
Convention on the law of the sea, which convention is binding. If the convention was merely a
moral code it would not be binding and no state would rely on this to as it were, to claim any
section of the ocean and seas of the world.}
Furthermore the legally binding force of international law has been severally asserted
by the nations of the world in international conferences. For instance the UN Charter is
both explicitly and implicitly based on the true legality of International Law{lecturer's
Explanation: He refers the class in particular to Article 103 of the U.N Charter which states
that :In the event of a conflict between the obligations of the Members of the United Nations
under the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail. } And Article 38 of the Statute of the
International Court of Justice states that the function of the court is to decide “in
accordance with international law” such disputes as are submitted to it. This
emphasizes that international law is not just a code of morality {Lecturer's explanation: In
regard to the earlier given example of dispute between Kenya and Somalia the International
Court of Justice is not going to decide this dispute, on the basis of international morality it is
going to decide it on the basis of International Law. This is because it applies rules of
international law which are binding upon states, and no state can ignore the decision of the I.C.J

Page 24
and for example say; Hey ; I.C.J look, that decision is not binding upon us because you did not
follow rules international morality.....Student asks; In comparison with what we are talking
about, the nation media group and standard group have indicated their intention to go to a
international court in Paris France for their Intellectual property rights to be vindicated in
regard to ownership of frequencies dispute with Communication Authority Of Kenya? Answer;
There is a convention and International Organization called International Telecommunication
union and it has its own governing statutes and hence deals with such. look at that. Lecturer
asks if the class has seen when Museveni visits Kenya and a red carpet is laid down for him and
military forces are laid out for him to inspect.
Then a question arises supposing we did not lay out a red carpet for him and we did not parade
out our military forces for him to inspect say we won't waste resources because even the military
guys who parade are paid allowances ? Would we be in violation of any rule of international
law? Answer given; out of courtesy. Supposing we did not extend that courtesy to Museveni
would we be in violation of any rule of international law? Don't say custom, because we will say
that custom is one of the sources of rules of International law(Article 38 1(b)of statute of I.C.J.
and customary rules are as much binding as strict rules. All Museveni can do is reciprocate the
same and refuse to lay out the red carpet and parade military forces for Uhuru when he goes to
Uganda.But he can't take us to I.C.J and say Kenya has violated this rule of international law.
Austin confused rules of International Law proper with rules of Comitas Gentium
(International Comity) the later being rules of good will and civility founded on the
moral right of each state to receive courtesy from other states. Non observance of a rule
of International Law may give rise to a claim by one state against others for some kind
of satisfaction whether it be diplomatic in character or whether it takes the concrete
form of indemnity or reparation.
It is otherwise for rules of International Comity i.e. it does not give rise to a legal claim)
{Lecturer's Explanation : If a state fails to observe a rule of I.L that failure to observe a rule of I.L
may lead to injury/damage to another state. In which case then that other state has the right to
claim some sought of satisfaction and that satisfaction may be diplomatic E.g. states recalling
their ambassadors/High commissioners; recall 2012 when Justice Nicholas Ombija issued a
warrant of arrest againstPresident Al Bashir(it's worth noting that he was right as he
proceeded on basis of International crimes act but it is also good to note that politics and

Page 25
international relations was involved and not just law ) ,he gave 48 hours to the Kenya
Ambassador in Sudan to pack and go back and recalled Sudan ambassador, that's an example of
reaction you get when you violate a rule of I.L to the detriment of another state.
In contrast when we refuse to lay out a red carpet to other president's, you are not going to see
anything coming for their commissioner's offices in Nairobi, the best they can do is wait to
reciprocate. If one wants to appreciate I.L be updated on development of International politics.
Example: Just ask yourself why did we do to Libya what we did to it in 2012 and we have not
done the same to Syria, yet what was happening in Libya is happening in Syria.
When Kenya elected I.C.C suspects as President there is no I.L implications because I.L does not
dictate to any state who it should elect as head of state. That's a matter within Kenyan
jurisdiction.Some International now how :Costa Rica is the only state in the world without a
military(abolished it 1949) and channeled all the resources it used in military to free education
and health care. Mozambique president moves about freely without chase cars with all the
unrest there compare that with Kenya situation}.
The concept of the law of nature exercised a great influence on the development of
International Law. Several theories of the character and binding force of International
Law were founded upon it. The law of nature denoted the ideal law founded on the
nature of manas a reasonable being i.e. the body of rules which nature dictates to
human reason(man refers to specie here not gender). The essence and relevance then is that
states submitted to international law because their regulations were regulated by the
Higher law, the law of nature of which International Law was apart.
The traces of the Natural law theories survived today although in a much less dogmatic
form. An approach kindred to that of Natural Law, colors the contemporary movement
to bind states by International covenants to observe Human rights and fundamental
freedoms and provides the justification for the punishment of individuals guilty of
gross and brutal violation of human rights such as war crimes and genocide.
{Lecturer's explanation: State feels obliged to comply with rules of I.L because they are part and
parcel of Natural Law. That is why we have states binding themselves with international
covenants /agreements to protect fundamental human rights, because such rights emanate from
the law of nature. Are you aware that there are certain human rights not conferred by law while

Page 26
others are? So for those not conferred by law they are conferred by nature and because they are
conferred by nature states are under natural law obligation, to ensure those rights are observed.
Because of its rational and idealistic character, the concept of the law of nature has had
a tremendous influence on the development of International Law. It has generated
respect for International Law and provided moral and ethical foundations.It's main
defect, has been its aloofness from the realities of International relations shown in the
lack of emphasis in the actual practice of state in their mutual relations although
the majority of rules of international law originally sprung from these practice.
On the other hand positivists hold that the rules of International law are in the final
analysis of the same character as "positive" municipal law in as much as they also issue
from the will of the state. They believe that International law can in logic be reduced to
a system of rules depending on their validity only on the fact that the state have
consented to them.{Lecturer's explanation: In other words I.L binds only because states have
consented to it, if not then it cannot be binding.}
Pursuant to their initial assumptions positivists regard International Law as consisting
of those rules which the various state rules wills have accepted by a process of
voluntary self restriction or auto-limitation .Under this theory states as independence
and free agents can only be obliged to comply with International Law rule if they had
first agreed to be so obliged. Without such manifestation of consent ,International law
would not be binding on society of states.
{Lecturer's explanation: States are sovereign hence ,over and above states ,there is no authority.
So they can only be bound by rules of International Law if they so consciously consent to be
bound. And that consent to be bound ,means they are as it were, exercising such restrain,
because as a sovereign they are not subject to any other authority.
So for them to be bound by rules of International Law they have as it were to exercise self
restrain. E.g. They can say we have by auto-limitation exercised self restrain hence we are bound
by this rule of international law otherwise we are not bound at all.}
The positivists do concede however, that the difficulty in application of the theory
relates to customary international law.

Page 27
They admit that sometimes it is impossible, to find an express consent in treaties , state
papers or diplomatic notes to be bound by particular customary rules. They therefore
argue in such exceptional cases consent must be regarded as implied.
This reasoning is often carried a stage further, by arguing that membership of the
society of states involves an implied consent, to the binding operation of established
rules of customary International Law.

One of the leading positivists , in favour of this theory is Italian Jurist Anzilloti(1867-
1950) a onetime judge of permanent court of international justice from 1921 to 1930.In
his view as propounded in his treatise Corso de Diritto Internazionale published in
1928. The binding force of international law can be traced back to one supreme
fundamental principal or norm, namely that the agreement between states are to be
respected or as the principle is better known Pacta Sunt Servanda.
{Lecturer's Explanation: What Anzilloti is saying, is that just like individuals when we enter
into an agreement, that agreement is binding and that is what as it were justified or formed the
obligation of I.L. When states agree they create expectations of which no state should
frustrate.Pacta Sunt Servanda in the law of treaties it is as it were the foundation of the entire
law of treaties. Besides the binding force of IL can be traced back to one supreme fundamental
principle or norm expressed by the principles of Pacta Sunt Servanda-This means that
agreements between states are to be respected and carried out in good faith. Behind
acceptance of treaties lies the this principle of Pacta Sunt Servanda perhaps the most
important concept in International Law. It refers to the binding nature and good faith
observance of treaties and includes the implications that international obligations
survive domestic law restrictions.
{ExtraExplanation: This principle was codified in the 1969 Vienna Convention on the
law of Treaties and the 1986 Vienna Convention on the Law of Treaties between states
and International Organizations .In addition, the Charter of the United Nations (the
"U.N Charter "), recognizes in its preamble the importance of parties maintaining their
treaty obligations.}

Page 28
 This norm(Pacta Sunt Servanda) is an absolute prostrate of International legal system
and manifest itself in all rules of International Law .Consistent with this view Anzilloti
holds that, just that in the case of treaties customary rules are based on the consent of
states and there is here an implied agreement .

However the positivists explanation of the binding force of International Law has
been objected to on a number of grounds:
1. Firstly the notion of state will is purely metaphorical and is used to express the fact that
international law is binding on states ,but does not explain why International Law is
binding on states. The state will is in fact the will or wills of individuals who govern
the state. States are composed of individuals and state policies are determined by
individuals.
2. It is difficult to reconcile the facts with a consensual theory of International Law
because in the case of rules of customary law there are many cases where it is
impossible to find any consent by states to the binding effect of this rules.(in other
words the facts in most cases do not as it were manifest prior consent so we can't say
that International Law rules bide because of consent of the states). Besides the
consensual theory breaks down the crucial case of a new state admitted into the family
of nations. Such new state is bound by International Law from the date of its birth
without an express act consent. The idea that in such an instance there is a tacit (an
implied consent) is untenable because other states looks to the new state to comply
with the whole body of established International Law.{Lecturer's Explanation: later we
will see that if a rule of customary law has matured into what is called jus-cogence meaning
peremptory norms of international law from which states cannot derogate. So if you have rules
of customary International law that have matured into jus-cogence say E.g. the prohibition of
slavery and slave trade ,also prohibition of war as a means of dispute settlement are now rules
of jus-cogence. So in a situation like that it is difficult to find express consent because when a
new state emerges it finds itself automatically bound by the pre-existing rules of customary
international law. E.g. When South Sudan emerges it is not going to say we are consenting to

Page 29
 rules of customary I.L not to engage in slavery and slave trade or engaging in war as a means of
dispute settlement. Because they already find themselves bound by pre-existing rules of
customary I.L. we automatically expect it to be bound by the pre-existing rules of I.L}.

3. It is never necessary in practice when invoking a particular rule of International Law

against a particular state to show that, that state has consented to the rule
diplomatically or otherwise. The test applied is whether the rule is one generally
recognized by the society of states.
4. There are concrete examples today of treaty rules particularly those laid down by
multilateral treaties having an incidence upon states without any form of consent
expressed by or attributable to those states.
For instance Article 2 paragraph 6 of the charter of the U.N provides that the
organization shall ensure that states which are not member of the U.N Act in
accordance with the principles of the charter so far as it may be necessary for
maintenance of International peace and security.{Lecturer's explanation: From the law of
contract ,a contract only binds the parties to it, and other parties are not bound by provision of
that contract. But here is a situation where you are being told by as it were ,the supreme I.L
instrument that the U.N as an organization shall ensure that non-member states (states not
party to the charter) act in accordance with the provisions charter inso far as it may be necessary
for maintenance of International peace and security is concerned.
Hence we are saying that even that consent theory that is being advocated positivists(that states
consciously consent) does not apply in all respect because of what Article 2 paragraph 6
says .look U.N make sure even that state which is not a member of the U.N complies with the
provisions of this charter and provisions of this charter in so far as maintenance of international
peace and security is concerned.}

Page 30
OBSERVANCE AND ENFORCEMENT OF INTERNATIONAL LAW.
How is it observed and how is it enforced?
As distinguished from municipal lawno world government or effective institution
machinery has been developed for the application and enforcement of International
law.(States have to formally accept the compulsory jurisdiction of International Courts and
their courts. We do not have an international police force).
Existing judicial agencies including the I.C.J are by passed more frequently than they
are used and even these agencies cannot be regarded as the true enforcers of the law.
Besides International Law does not possess the equivalent of a hierarchy of tribunals
under which a case can move from lower to Higher levels by way ofappeal.(Article 60
of the Statute of the I.C.J states'the judgment is final and without appeal. In the event of
dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request
of any party'. )
Besides there is no effective authority for the enforcement of decisions or award handed
down by the available court and tribunals.{Lecturer's Explanation: We are saying that there
is no world government or effective institution machinery which has been developed for
the application and enforcement of International law. Do NOT ever as student of I.L.
forget that states are sovereign or as it were (Alpha and Omega)they are the ones that decides
which convention to adopt, which Institution to create, which powers to give that institution,
which functions to give that institution. We have said above "existing judicial agencies
including I.C.J are by-passed".
When I.C.J was established, it was established without compulsory jurisdiction over
states.States have to expressly consent to the jurisdiction of I.C.J.(To put it into context Somalia
has taken Kenya to I.C.J because it confirmed Kenya accepted the compulsory jurisdiction of
I.C.J and we did that in April, 1964 by telling so the U.N general assembly that we so accept .It
is worth noting that even when states have to accept the compulsory jurisdiction of I.C.J they
still have the right to exclude certain categories of disputes from the jurisdiction of the I.C.J .

Page 31
Kenya for example when we accepted the jurisdiction of I.C.J in1964 we excluded certain
category of disputes from the jurisdiction of I.C.J.
For example: Kenya excluded disputes between it and members of the common wealth nations
from the jurisdiction of I.C.J. That is why we cannot take Uganda to I.C.J over Migingo and
Ugingo Island dispute. Also member states of common wealth cannot take Kenya to I.C.J.
This is why we said existing agencies are by passed more frequently than they are used and even
when they are used "they are not regarded as true enforcers of the law" the reason being, that
unlike the high court where if I get a judgment against you I can go and extract the decree and
execute the decree, in the case of Judgment given by the I.C.J, the state in whose favour the
judgment has been given has to go to the Security Council, for the security council to decide
what to do if the state against which the judgment has been given is not ready and willing to
carry out that judgment. But then we are also saying that once the I.C.J or any other
International Tribunal has delivered or handed down its decision that is final because it cannot
be appealed against or be appealed from to another tribunal .Indeed if you look at the statute of
I.C.J the decision of I.C.J is finaland binding. One cannot appeal anywhere like one can appeal
from the high court to court of appeal to supreme court if necessary in Kenya. This means that
I.C.J., I.C.C, The international tribunal of the law of the sea e.t.c gives a judgment that is
it('finale')/That is the end of it.
THE QUESTION THEN ARISES HOW DOES INTERNATIONAL LAWTHEN GET TO
BE OBSERVED BY THE STATES?
Prof questions and jogs students mind by saying the following in an attempt to get the
answer to the question: We have a court where we cannot drag Kenya to kicking and
screaming whether it likes it or not, the I.C.J does not have compulsory jurisdiction, here in
Kenya we will get the police to arrest you and drag you to the high court, I'll get a warrant of
arrest in a civil case and take you to the high court but in the I.C.J you can't. You can only take
a state there which says 'Yes I.C.J you have jurisdiction' . Apart from sanctions how do we get
international law being observed. Political will. N/B interpol cannot arrest Kenya and take it to
I.C.J., it is only used to hunt down fugitives who have ran away from the law after committing
crimes.(individuals and not states)}
Good To Know: (Ref to Article 94 – the U.N General Assembly or the Security Council may request
the I.C.J to give advisory opinion on any legal question. Other U.N organs and agencies may also request

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upon the U.N General Assembly authorization and advisory opinion regarding the scope of their
activities )
WHAT THEN ENSURES THAT RULES OF INTERNATIONAL LAW ARE OBSERVED
BY STATES?
Indeed International Law is more honoured in the observance than in the breach:
There are at least three factors that motivate compliance with International Law.
1) States are mutually interdependent in many ways and International Law facilitates
these co-operations[i.e. Kenya is not an Island. It must depend on T.Z ,U.G e.t.c]
For instance states with a common interest in International communications and disease
eradication. These are areas where an action on International scale is essential and
hence states will comply/obey with rules of International law on these issues.{Lecture's
Explanation: We are living in an age/era of globalization & integration and when you have
globalization & integration those bring in turn closer co-operation&collaboration and because of
that states are then motivated to comply with the rules of international law to facilitate such
closer co-operation & collaboration. Example :we are talking of E.A common Market to come
closer economically and we cannot benefit from such(economically closeness) not unless we
comply with rules governing that co-operation.}
2) States have to co - exist with oneanother and a means of doing this is to define their
relationship by concluding treaties and other consensual agreements. At this level
obedience is high and the law is generally effective. The concept of reciprocity plays an
important part here in ensuring that international stability is maintained. E.g. 1989
Kenya , Rwanda, Burundi,U.G &T.Z decided to conclude the treaty establishing E.A
community so as to co-exist(such co-existence is facilitated by conclusion of that treaty)
3) International Law has an important role to play in Inter-state relations by keeping
the breach of rules of conduct to a minimum and thereby ensuring conflict avoidance.
4) Another factor playing an important part in the promotion of obedience to the rules
of International law is World Public opinion which finds expression in world fora such
as United Nations General Assembly.
The reactions in the traditional sense of states men and of peoples on global scale act
as a deterrent towards the breach of rules of International Law. {Lecturer Explanation:
Everyone wants good reputation, such that no state would want when in states forum like G.A
meetings everybody is condemning it}

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This below has nothing to do with OBEDIENCE it is about ENFORCEMENT:
Unlike the municipal law systems where the machinery of enforcement is centralized
in government authority, in International Law it is of necessity decentralized since
the primary subjects of International Law are states. {Lecturer Explanation: We are
saying the states are the law enforcers & the law makers for purposes of I.L. They want to make
I.L because they are the one that adopt treaties and conventions in international conference and
because we said over & above state there is no superior authority, the states are also rein forcers
of I.L. in other words states are the primary actors of the international legal code. They are the
one that make and unmake those rules of I.L & enforce those rules of I.L. so to speak.}
Traditionally in a decentralized order, enforcement of law is accomplished through self
help by individuals injured by the delict or illegality.
However the system established under the UN Charter and before it the Covenant of
the League of Nations was designed to ensure that member states obey and respect
international obligations deriving from these legal instruments.
N/B the use of force except in self defense is now illegal/outlawed.{lecturer's
explanation: Now we have an international legal order where states cannot result to self
help where they have suffered loss as a result of violation of I.L by another state.
Traditionally in a decentralized order enforcement was accompanied by self help but
we now are in an international legal order where states cannot result into self help
except in self defense.(Article 51 and Article 42)
Diplomatic protests are the traditional pacific( peaceful) method of preserving the
integrity of international law. Such protests are commonly coupled with demand that
the wrong done be righted in an appropriate manner. Example: Ambassadors being
recalled, foreign ambassadors being summoned to appear before the minister for
foreign affairs of host state e.t.c.This is what we mean by diplomatic protests.
Although minor violations might be corrected in consequences of such protests, major
international violations would most instances remain unaffected by the lodgment of
diplomatic protests.{Lecturer's Explanation: There is no way Sadam Hussein would have
pulled out of Kuwait simply by Kuwait protesting by recalling its ambassador in Iraq if there
was one, or simply by Kuwait summoning the Iraq Ambassador to Kuwait and say don't invade
us you are violating I.L.}

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If disagreement about claim violations persists a variety of devices can be called into
play to secure compliance with the law; have in mind what happed to Iraq when it
invaded Kuwait. These include mediation by a third party, reference to a commission
of enquiry or of conciliation(when there was shifter war between Kenya and Somalia Nyerere
went to intervene and there was even a commission set by O.A.U mediate. The war was ended
officially in 1981 when the then Somali president said they had no claim on the Kenya
territory), Next or alternatively ,reference to an arbitral tribunal or an International
Court in order to effect compliance with the law. (note that arbitration cannot be
resulted to not unless both parties agree to it).Again , compliance may be secured
through reference to and subsequent action by a universal or regional international
arrangement or international organizations such as the UN Security Council or U.N
General Assembly or the African Union, European Union or the Organizations’ of
American States.
Such a reference would initially secure publicity for the alleged violation of
International law and possible public condemnation of the delinquent state. It might
more importantly lead to the imposition of a variety of sanctions against the offending
state.
Failure to achieve compliance through this method into being the imposition of
sanctions such as:Boycotts, Embargos(this means no state is going to have any
dealings with the delinquent state i.e no trade, no diplomatic relations), Reprisals and
pacific blockadesadopted at the behest of a regional or universal agency. {Lecturer's
Explanation:[ A pacific blockade involves where you have a group of state or several state
contributing their military forces and literally surrounding the delinquent state so that nothing
comes in nothing goes out of delinquent state until you yield and say we violated International
Law we are not going to repeat ]. Pacific blockades is at the Cuban missile crisis (1962). This
was during administration of J.F Kennedy.
What had happened here was that , the former Soviet union had agreed with Cuba to transport
nuclear missiles from Moscow to Havana Cuba. Before they reached Cuba ,U.S intelligence
discovered and sent the military to intercept the ship that was carrying missile to Cuba.
The ship never reached Cuba and it was forced back to Soviet Union before it reached Cuba. But
because the U.S and the rest of the member of the Organization of the American state viewed

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this as a violation of the charter of the Organization of the American state they decided to
impose a pacific blockade. U.S and the rest of the member of the Organization of the American
contributed forces and of course America Contributed the most and surrounded Cuba. Nothing
got in or out of Cuba. This consequently led to the suspension of Cuba from membership of
Organization of the America and also U.S imposed economic sanctions against Cuba. Recently
Obama has said they want to restore diplomatic relations with Cuba and republican are
opposing}.
In addition the offending state may be suspended or even expelled from membership in
an International agency and thus be deprived of benefits accruing from such
membership as well as of the ability to vote on decisions and policies of the agencies.
{Lecturer explanation: If we have a member state of the U.N which conducts itself in violation of
the principle of the U.N charter, the rules of the U.N that state can end up being suspended or
even expelled from U.N.(Article. 6 of U.N charter, provides:A member of the United
Nations which has persistently violated the Principles contained in the present charter
may be expelled from the Organization by the General Assembly upon the
recommendation of the Security Council.
In the history of the U.N no single member of the U.N ,has been expelled from the membership
U.N. for violating not just I.L but in particular the principles of the U.N Charter. South Africa
was never expelled but was suspended from membership of the U.N in 1973 and remained so
suspended until 1994, because of apartheid. U.N General Assembly was of the view that the
government policy of apartheid was contrary & against the purposes & principles of the U.N
hence suspended South Africa up to 1994 when Mandela and Fredrick Kuban brought down
apartheid. and then South Africa was re-admitted back to U.N Membership.
South Africa did not become independent in 1994 it became independent 1910.It was among the
3 Africa states that were members of legal nations. Apartheid came down in 1994 and the first
president elected by the Majority, Nelson Mandela. }
Finally the ultimatesanction of military force may be employed to secure
compliancewith the rules of International Law. E.g. Sadam got out of Kuwait by such
and got Iraq to comply with I.L.
However the legal standing of such an action would however be carefully
circumscribed in view of the precise provisions of the UN Charter and ofthe obligations

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assumed there-under by the member states of the UN. (UN Charter clearly prohibits
use of force or threat in International relations. This is so explicitly stated under Article
2(4) Of the U.N Charter which states; All members shall refrain in their international
relations from 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.
Use of force is only allowed under Article 51(which provides that : Nothing in the present
Charter shall impair the inherent right of individual or collective self-defense if armed attack
occurs against a member of the United Nations, until the Security Council has taken the
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)and it is in exercise of the inherent right of self
defense.
Even then when a state results to force in self defense it is not as it were given a blank
check. It has to immediately refer the situation to the U.NSecurity Council, which
determines how that situation will be resolved.
Use of force we are talking about here is the one sanctioned by the security council
pursuant to the exercise of what is called enforcement powers of security council under
the U.N Charter.
Example; It only the security council that decides we have to kick Sadam Hussein out
of Kuwait to force him to comply with International law.
END OF LESSON TWO.
CHEERS!!!! All the bestThanks.

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LESSON THREE:
Exam Question: April 26 2014.
QUESTION 3:
Mr. Wamugunda Benjamin Geteria , the Chief Justice of the Republic of Tamara ,has
been invited to sit as an adhoc judge in a case before the I.C.J at the Hague . Having
dealt almost exclusively with domestic legal issues throughout his career , he is
experiencing some challenges in assessing some materials submitted to the Court by
the parties. These materials include:
a)An Article in the American Journal of I.L ,By Prof. Alfred P.Rubin, a distinguished
professor of I.L
b)Draft Articles prepared by the I.L commission.
c)A decision of the Supreme Court of one of the parties to the disputes.
d) A resolution of the U.N General Assembly.
e)A multi-lateral treaty to which only one of the parties to the dispute is a party .
f) A unilateral statement by the Foreign Minister of one of the parties to the dispute.
g) A previous decision of the I.C.J.

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 Mr.Geteria, having been told that you are a public I.L Scholar, seeks your advice as
to the weight he should attach to the above materials as sources and evidence of I.L.
Prepare an articulate memorandum for Mr.Geteria ,explaining the sources of
contemporary I.L and advising him in respect to the above materials.
B.SOURCES OF PUBLIC INTERNATIONAL LAW.
Introduction
By “ sources of law” means the processes or means by which rules of international law
are created or determined. Because there is no International equivalent of a legislature,
the rules of international law are of a quite different nature from those of municipal
law, and are overwhelmingly derived from either or both of the two major sources
creating legally binding obligations mainly treaty and or customary I.L.
In the domestic realm, the source of a rule or law is seldom controversial.
Common law systems rely upon statutes and decisions to be found in court judgments
for evidence of the equivalent of such a rule . Civil law systems, rely upon the
appropriate legislation or codes.
It is rarely necessary in either system(that is common or civil) to inquire whether a
legal rule is in fact a legal rule and its existence if not its interpretation will be
uncontroversial. {Lecturer's Explanation: if I want to find out where Kenyan law on crime is I
go to the penal code. If it's law contract I go to the contract act e.t.c. If also Supreme court has
interpreted a rule in a particular way its application is binding upon all the subordinate courts,
hence there is no controversy on the existence of rule or its interpretation.
International law presents different problems mainly because there is no absolute
agreement about what constitute a source of International Law. International
customary law presents particular difficulties and many cases turn on whether the
existence of a particular customary rule can be actually proven.{ Lecturer's Explanation:
one has to prove the existence of a particular customary rule before the I.C.J can apply it.}
However the closest approximation to an authoritative list of relevant sources of
International law and the one that is often cited is found in Article 38 paragraph 1 of
the statutes of International Court of Justice. This provision adopted from the same
Article of the statute of the Permanent Court of International Justice which operated
under the auspices of League of Nations provided that the court whose function is to

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decide "in accordance with international law" such disputes are submitted to it shall
apply:
a) International conventions whether general or particular establishing rules expressly
recognized by the contesting states
b) International customs as evidence of ageneral practice accepted as law.
c) The general principles of law recognized by civilized nations.
d) Subject to the provisions of article 59(Article 59 The decision of the Court has no binding
force except between the parties and in respect of that particular case.) judicial decisions
and the teachings of the most highly qualified publicists of various nations, as
subsidiary means for the determination of rules of law.
The effect of this provision is that by applying what is mentioned in paragraphs A to D,
the court will be applying International law.
Article 59 provides that the decisions of the ICJ has no binding force except between the
parties and in respect of that particular case.
Under Article 38 paragraph 2 the court is empowered to decide a case ex aequo et
bono(Latin for “according to the right and good”) if the parties agree thereto. The court
can under this provision ignore rules which are the product of any of the above law
creating agencies(i.e. International conventions, customs general principles e.t.c) and
substitute itself as a law creating agency depending on the agreements of the parties
to the dispute before it. This is more practical.This enables the court to avoid the
pronouncement of what is technically called a non liquet ( A situation where the court
reaches a stalemate and tells the parties before it that it cannot decide as it has no rule to rely on
or inability or impossibility to decide as no applicable rule has been found){Lecturer's
Explanation: In the unlikely event that there is a dispute before the court and it cannot resolve
the dispute using ARTICLE 38[ 1](cannot find a rule or convention/treaty that is applicable to
the contesting state, the court also cannot find a rule of customary I.L applicable to the dispute
between the states, the court cannot find a general principle of law recognized by the states e.t.c)
the court cannot throw in the towel and send the parties home on basis that it cannot decide.
The question arises ;Why is such a situation likely to arise? Because I.C.J does not have
compulsory jurisdiction. Parties appear before the I.C.J by consent. This means the court can
only avoid a pronouncement on non-liquet, if the parties before allows it telling it to use its
sense of justice to determine the dispute before it based on what is just in the circumstances as
there are no rule or International custom applicable. Question; can I.C.J send the parties to the

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Security Council? No because the parties went seeking a judicial decision not a political one.
Article 38(2) can only be resulted to as a last resort or after Article 38(1) has been
exhausted/fails to assist the court in determining the dispute}it is good to note that the I.C.C
does not have original criminal jurisdiction, it has complementary criminal jurisdiction to
municipal courts of individual state or if its law is unable to act or does not provide a remedy.

The various sources enumerated by Art 38 of the statute may be applied

simultaneously and as such the order of enumeration does not constitute a hierarchical
order. Besides, the article is not exhaustive because on the one hand, it envisages
sources of International Law from a strictly jurisdictional perspective and on the other
hand being a text adopted almost 100 years ago ,does not take into account the
evolution of International Law.
For instance acts and decisions of International organizations which have greatly
contributed to the formation and growth of International Law are not mentioned under
Article 38.{Lecturer's Explanation: if we go strictly by the enumeration of Article 38 there is
no reference to draft articles of International law commission, also U.N General Assembly
resolutions, unilateral declarations e.t.c hence we say, being a text adopted almost 100 years
ago ,does not take into account the evolution of International Law.}
1) TREATIES/CONVENTIONS/CHARTERS /PROTOCOLS(All mean the same:
International Agreements)
Dfn: A treaty or convention is any international agreement entered into by two or more
states or other international law persons and it's governed by International law.
A distinction is normally made between law making treaties i.e. those, treaties which
lay down rules of general or universal application (multilateral treaties) and treaty
contracts that is those treaties that are entered into between two states dealing with a particular
matter between or concerning those states exclusively (bilateral treaties).
Treaty whether multilateral or bilateral, are direct source of rights and obligations for
the parties and represents a source of international ,whose importance is ever

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increasing.(Nobody thought at that time that most of contemporary law is now treaty
law & rules of customary I.L are as it were reviewed)
In the event of a dispute between the parties to a treaty the terms thereof will constitute
the law to be applied by the court. Treaties may impose duties to enact legislation or
may offer areas of choice within the ambit of which states are to apply the principles
laid down therein. They may also be either confirmatory of or represent a codification
of pre existing rules of customary International Law.
For instance : The 1961 ,Vienna conventionson Diplomatic relation codifies pre-
existing rules of Customary International Law on issues such as the inviolability and
immunity and privileges of diplomatic envoys.[Once treaties are ratified & adopted
they become sources of rights & obligation hence if any dispute arises they become the
rules to be applied by the court to solve them]
States or other International Law persons are bound by treaties which have been
regularly concluded and have entered into force states under the principle of Pacta
Sunt Servanda. {ExtraExplanation: This principle was codified in the 1969 Vienna
Convention on the law of Treaties and the 1986 Vienna Convention on the Law of
Treaties between states and International Organizations .In addition, the Charter of
the United Nations (the "U.N Charter "), recognizes in its preamble the importance of
parties maintaining their treaty obligations.} Under this principle parties to treaties are
bound to observe and carry out the obligations in good faith. This principle which is in itself a
rule of customary International Law is the basis of positive International Lawupon which the
entire superstructure of contemporary International Law depends. The function of
treaties is however limited by two factors:
1) Treaties bind the parties thereto only and not non- parties. The legal position of
non- parties cannot be modified without their consent ,that is to say that legal rights
cannot be conferred and duties imposed on them without their consent .{Lecturer's
Explanation: To3rd parties, no way provisions of a treaty whether multilateral or not can be
applied against them. It's like a contract one must be part of the agreement. Even parties to a
treaty do so by consent. That is for example why one wonders, of what importance is to
Kenya to ratify the 1967 moon treaty when we will never send an astronaut to the moon and

Page 42
 leave the treaty of migratory species of wildlife when we have Maasai Mara wild beast
migration. This because Kenya becomes party to a treaty by consent}
2) The second limitation is provided by the principle of Jus Cogens. Under this
principle the states freedom to conclude treaties is limited by the fact that parties to
a treaty cannot provide in derogation from the generally accepted principles of
International Law.
For instance parties to a treaty cannot agree to wage war against a 3rd party when it
is prohibited by general International Law or to engage in slave trade when IL
prohibits it.) States cannot agree under treaty to violate the peremptory norms (can’t
be derogated, they are binding)
Some Extra things to note: Article 2(5) which states the general principles of I.L shall form
the laws of Kenya is wrong as there is nothing like the general principles of I.L,hence it
should say rules of customary I.L as there is only rules of customary I.L. Rules of customary
I.L are automatically part of the laws of the state unless they clearly contradict an act of
parliament or judicial decisions of the highest court/judicial organ in the land(e.g. Supreme
court).When it comes to rules of convention or treaty law a country must ratify a treaty
and secondly domesticate it.That is why Article 2(6) of the constitution is incomplete
unless you read it together with Ratification of Treaty & Convention Act 2012.Note
also that theI.C.J will only have jurisdiction in regards to a treaty if the parties to it by
consent agree that if such and a dispute arises we shall refer it to I.C.J. hence even when
parties to such a treaty are not members of the U.N or have not consented to compulsory
jurisdiction of the I.C.J they cannot say we are not bound by to I.C.J if such a dispute
emerges, because they will be told that they have so consented to ITS jurisdiction in regard to
such a dispute. Article 36(1) of statute of I.C.J affirms so by stating that:The
jurisdiction of the court comprises all cases which the parties refer to it and all matters
specifically provided for in the Charter of the U.N orin treaties and conventions. Don't
confuse DEFENCE PACT and TREATIES TO WAGE WAR. If you look at Article 51
of the U.N charter which is the only article which allows use of force in exercise of
Inherent right of self defense and can be exercised individually or collectively. If you look at
the treaty establishing NATO for example is a defense pact which brings together western
European states, U.S & Canada .it is not an agreement set up to wage war against any other

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 state. Article 2(4) of the U.N Charter prohibits use of force in settling International
Disputes. Defense pact is for self defense by countries in exercise of Inherent right of self
defense collectively (Article 51) whereas treaties to wage war is an agreement to attack other
countries which is prohibited by Article 2(4) of the U.N Charter.
An example is a coalition force formed by U.S, German, British Egypt Troops which kicked
Sadam Hussein out of Kuwait in exercise of collective self defense. Even before you exercise
Article 51 there must have been a prior armed attack. Chapter 6,7 and 8 provides for powers
of security council. NATO invaded Libya under instruction by U.N Security council. I.L
and state practice allows Pre-emptive self defense is allowed e.g.U.S attacking Iran.
2) INTERNATIONAL CUSTOM
Is customs a source of international law?
Until recently the rules of general International Law were all customary rules. Although
most of these still exist they have been modified so as to be adapted to the changes in
International relations. The rules of customary International Law evolved after a long
historical process culminating their recognition by International community.
N/B;In order for a custom to give rise to a binding rule it must have been practiced and
accepted as obligatory by the international community.
State practice distinguishes between general and regional custom.
General customs are those customary rules that bind the International community as a
whole whereas local or regional customs are those applicable to a group of states or to a
sub-region interse.
{Lecturer's Explanation; Not every custom is a rule of Customary I.L .e.g. laying a carpet for a
visiting head of state. If for instance members of the state of the International community are
used to conducting their interstate affairs in a particular manner because they feel they are
bound to do so will then this will develop into a local or regional customary law and cannot
extend that practice to the international level or rest of Africa.}
Elements of customary law
What elements makes a custom obligatory?
i) Duration (for how long must the custom be practiced to give rise to binding rules)
The jurisprudence of International tribunals including the ICJ indicates that no
particular duration is required for a particular practice to become law provided the

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 consistency and generality of the practice are proved. Conduct to be creative of a rule of
customary law must be regular and repeated.
In the North Sea Continental Shelf case (1969) I.C.J Rep.4, the ICJ says that there is no
precise length of time during which the practice must exist. Simply that it must be
followed long enough to show that the other requirements of a custom are satisfied.
The court stated, “ although the passage of a short period of time is not necessarily, or of itself,
a bar to the formation of a new rule of customary IL, on the basis of what was originally a purely
conventional rule, and indispensable requirement will be that within the period within question,
short though it might be, state practice, including that of states whose interest are specially
affected, should have been both extensive and virtually uniform in the sense of the provision
invoked- and should moreover have occurred in such a way as to show a general recognition that
a rule of law or legal obligation is involved.”[What I.C.J is saying is that duration does not
matter what matters is consistency & the believe of the recognition of that particular
practice was obligatory]
ii) Uniformity and generality
Major inconsistencies in practice will prevent the creation of a rule of customary IL.
However, complete uniformity is not required and minor inconsistencies will not
prevent the creation of a customary rule provided that there is substantial uniformity.
In other words for state practice to give rise to a binding rule of customary IL, that
practice must be uniform, consistent and general andmust be coupled with a belief
that the practice is obligatory rather than habitual.
This is illustrated by the Asylum case I.C.J Rep.266which was between Colombia and
Peru. After an unsuccessful rebellion in Peru in 1948, a warrant was issued for the arrest
on a criminal charge arising out of the rebellion of one of its leaders Haya de la Torre a
Peruvian National. He was granted asylum by Colombia in its Peruvian embassy in
Lima(Capital city of Peru). Colombia sought but Peru refused a safe conduct to allow
Haya de la Torre out of the country. Colombia brought this case against Peru asking the
court to rule inter alia that Colombia as the state granting asylum was competent to
qualify the offence for the purposes of the said asylum. Colombia argued for such a
ruling on the basis of both treaty provisions and “American International Law in
general.”

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 The court pronounced, “the party which relies on a custom of this kind must prove that this
custom is established in such manner that it has become binding on the other party. The
Colombian Government must prove that the rule invoked by it is in accordance with a constant
uniform usage practiced by the states in question, and that this usage is the expression of a right
appertaining to the state granting the asylum and a duty incumbent on the territorial state---
The facts brought to the knowledge of the court disclosed so much uncertainty and contradiction,
so much fluctuation and discrepancy in the exercise of diplomatic asylum and in the official
views expressed on different occasions; there has been so much inconsistency in the rapid
succession of conventions on asylum, ratified by some states and rejected by others, and the
practice has been so much influenced by considerations of political expediency in various cases,
that it is not possible to discern in all these any constant and uniform usage accepted as law.”
(Colombia proved that this is a duty)
 N/B -The generality of the practice is an aspect which complements consistency(must
be uniform consistent uniform &general). The practice need not be universal in that
what is important is that a substantial number of states must apply or practicethe
custom.
END OF LESSON THREE.(This notes assist you but they are not a substitute to
attending class)

LESSON FOUR:

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iii) Opinio juris et necessitatis/ Opinio juris sive necessitates (Latin for “an opinion of
law”)
To assume the status of customary I.L the rule in question must be regarded by state as
being binding in Law i.e. the states must regard themselves as being under a legal
obligation to follow the rule. This sense of a binding legal obligation is referred to as
Opinio juris et necessitatis and is what distinguishes rules of customary I.L from rules
of International Comity which are simply based upon a consistent practice of state not
accompanied by any feeling of legal obligation.
The statute of ICJ refers to custom as evidence of a “general practice accepted as law.”
(Article 38 Para 1 b).It must be proved that the state following a particular customary
rule do so out a duty of binding legal obligation.

In other words the proponent of a custom has to establish a general practice and having
done this in a field which is governed by legal categories the tribunal can be accepted to
presume the existent of an opinion juris. The distinction between International rules
which create a legal obligation and those which simply permit a state to act in a certain
way was illustrated by a Permanent Court of International Justice in the SS Lotus case
between France and Turkey. A French steamer and a Turkish Collier(a special ship used
to transport coal) collided on the High seas. As a result the Turkish collier sank and
some of its crew and passengers lost their lives. The French steamer having been put
intoCourt in turkeyvoluntarily the officers of the watch on board at the time of the
collision were arrested tried, convicted of involuntary man slaughter by the Turkish
authority. (Under I.L if a foreign ship is forced by tempest or is about to sink and it asks Kenya
port to allow it to come in it means it is so doing involuntarily/it is seeking refuge/it is a refugee
and when it is a refugee you do not proceed against it despite any violation of I.L or even
National law hence the word voluntarily in this case is very important because if the French
Steamer had been forced involuntarily to dock into Turkey, Turkish authority could not have
proceeded against it)France protested against the Turkish exercise of criminal jurisdiction
on the basis that this was in violation of the international law.
The question before the courtwas whether Turkey had the jurisdiction to try the French
officers of a French Merchant ship for the collision. France argued that Turkey had no

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right to institute criminal proceedings because the flag state of the vessel alone had
jurisdiction over act performed on board the vessel on the High seas. Turkey argued in
reply that vessels on the high seas form part of the territory of the flag state and further
that the criminal legislation of a sovereign state is not bound to keep within the limits
of territorial and personal jurisdiction. It therefore, asserted that in the absence of a
rule to the contrary there was a permissive rule empowering it to try the officers. France
however argued that there was a customary rule imposing a duty on Turkey not to try
the officers because previous practice showed that, “questions of jurisdiction in collision
cases are but rarely encountered in the practice of criminal courts---in practice prosecutions only
occur before the court of the state whose flag is flown".
In rejecting the French argument the court stated, “ even if the rarity of the judicial
decisions to be found among the reported cases were sufficient to prove the circumstances alleged
by the French government, it would merely show that states, had often, in practice, abstained
from instituting criminal proceedings, and not that they recognize themselves as being obliged to
do so; for only if such abstention were based on their being conscious of having a duty to abstain
would it be possible to speak of an International custom. The alleged fact does not allow one to
infer that states have been conscious of having such a duty---.”
The court found that there was no customary rule conferring exclusive penal
jurisdiction in matters of collision on the high seas on the flag state because state laws
were inconsistent, decisions of municipal courts conflicted, no uniform trends would be
deduced from treaties and publicists were divided in their views.
{Lecturer's Explanation: if a person commits an offence in Kenya he is liable .An ambassador is
immune from prosecution.) (France is saying when it comes to exercise of criminal jurisdiction
arising out of collision in the high seas state have often deferred to the flag state on the other
hand Turkey says I.L assimilates ships to the territory of the flag state & therefore when
anything happen to the ship it is like it is happening to the territory of the flag state and because
it is happening to the territory of the flag state, it has jurisdiction on the basis of territorial
principle.
So basically the court is telling France to prove to the court that state defer to the flag state out
of a binding legal obligation rather than out of courtesy or good will which it did not as states do
so out of goodwill/courtesy )

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 In the North sea continental shelf cases ,the court stated:"---To constitute the Opinio
juris sive neccesitatis two conditions must be fulfilled. Not only must the act concerned
amount to a settled practice but they must also be such or be carried out in such a way as to
be evidence of a belief that this practice is rendered obligatory by existence of a rule of
law requiring it. The need for such a belief ,i.e; the existence of a subjective element is implicit
in the very notion of opinio juris sive necessitatis. The states concerned must therefore feel
that they are conforming to what amounts to a legal obligation. The frequency, or even habitual
character , of the acts is not in itself enough.
There are many International acts which are performed almost invariably but which are
motivated by considerations of courtesy, convenience or tradition and not by any sense of legal
duty."The court accepted that a provision in a treaty could indeed generate a rule of
customary law which would become binding on third parties .However, the court
indicated that this process is not to be lightly inferred. For a treaty provision to become
binding as a rule of customary international law,the party invoking the rule must be in
a position to show that the rule meets all the general requirements for the creation of
customary law.

iv. Proof of custom

In order for a rule of customary law to develop it must be at some stage if possible to
imply from the conduct of states that between them it is regarded as a matter of legal
duty that they should act in a certain way. Such state conduct will only attain the position of
a rule of general international law if a sufficient number of states accept it as binding on them
and if the rest of international community does not register an effective protest to the extension
of the rule to the conduct of relations in which they are involved.
Where a particular state or group of states persistently object to the rule being extended
to it, that state or group of states will not be bound by the rule unless it is a rule of Jus
cogens.
In that case, the objections would amount to violations of international law. The
standard elements of customary international law must be proved, that is:
1. Uniformity of state practice
2. Generality of state practice

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3. The sense that state practice is required by law(opinio juris) which may be therefore reduced
to two primary components namely:
 The objective practice of state.
 The subjective belief motivating this practice.
Customary International law is therefore created by the fusion of an objective element
namely state practice and a subjective element namely Opinion Juris.
The party claiming existence of a rule of customary International Law has the burden of
proving it(Remember the SS Lotus Case where the burden was on France).This is done
by various evidential procedures such as views and resolutions of the UN general
assembly, practice of states, conventions and decisions of International Tribunals in
International legal disputes.
3) GENERAL PRINCIPLES OF LAW
The statute of the I.C.J authorizes the court to apply general principles of law
recognized by “civilized nations.”(legal maturity) The reference here is to the level of
development of legal systems rather than economic or political status because all
nations are now considered as civilized. The term “peace loving” as stated in Article. 4
of the UN Charter is now preferable.
The general principles are not a subsidiary body of doctrine to which resort may be
heard when all else fails because the article does not speak of them as such although it
does so with respect to judicial decisions and writings of publicists as a means for the
determination of the rules of law.
{ Lecturer's Explanation: When one looks at Article 38 par 1(c) general principles of law are not
referred to as subsidiary means for the determination of the rules of law ,meaning that general
principles of law provide the rules that the court will apply directly to a dispute before it.
They are not there to help the court determine the applicable rules unlike judicial decisions and
writings which are there to help the court determine which rules should be applied.}
The general principles are those which are accepted by all nations in their domestic law
systems such as certain principles of procedure; principle of natural justice; principles of
good faith and the principle of res judicata.
Oppenheim states that the intention is to authorize the I.C.J to apply general principle of
municipal jurisprudence in particular of private law, in so far as they are applicable to

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relations of state(interstate relations). In this way private law which is more generally
developed than International law has provided a reserve store of legal principles upon
which International Law can draw.
The inclusion of this provision in the statute of the court has therefore been seen as a
rejection of the positivist doctrine and as an affirmation of thenaturalist doctrine
whereby if there appeared to a be a gap in the rules of International Law, recourse
could be heardthrough the general principles of law namely natural law.
Schwarzenbergersays that for the principles to qualify for the incorporation into
International Law, it must fulfill 3 requirements namely:
i) It must be ageneral principle of law as distinct from a legal rule of a more
limited functional scopes;(if you were to look at a principle like fair hearing that is a general
principal of law as distinct from a rule of limited functional scope like hearsay evidence rule is of
limited functional scope)
ii) It must be recognized by 'civilised /peacenations'as distinct from ‘barbaric or
savage communities’;
iii) It must be shared by a fair number of nations including the principal legal
systems of the world, for example Anglo-Saxon or common law system.(if you find that
principle applied in the common law system ,civil law system, Islamic law system then that is
general principal of law shared byafair number of nations)

International tribunals have made reference to general principals in a number of cases:

For instance in the: Chorzow Factory Indemnity Merits (1928) PCIJ Rep. Ser. A No. 17.
The P.C.I.J stated that it was a principle of International Law, and even a general
concept of law that any breach of engagement involves an obligation to make
reparation .The Permanent Court of International Justice stated that “The Court
observes it is a principle of international law and even a general concept of law that
any breach of an engagement involves an obligation to make reparations” It went
further ..”the essential principle contained in the actual notion of an illegal act…is
that reparation must as far as possible wipe out all the consequences of the illegal act
and re-establish the situation which would in all probability have existed if that act

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had not been committed…” “…one party cannot avail himself of the fact that the other
has not fulfilled some obligation or has not had recourse to some means of redress if
the former Party has by some illegal act, prevented the latter from fulfilling the
obligation in question or from having recourse to the tribunal which would have been
open to him”
Facts of the case
On March 5th 1915 a contract was concluded between the Chancellor of the German
Empire, on behalfof the Reich and the Bayerische according to which that Company
undertook “to establish for the Reich and forthwith to begin the construction of
amongst other things, a nitrate factory at Chorzow in Upper Silesia. The necessary lands
were to be acquired on behalf of the Reich and entered in its name in the land register.
The machinery and equipment were to be in accordance with patents and licenses of the
Company and the experience gained by it and the Company undertook to manage the
factory until March 31st 1941,making use of all patents,licences gained ,innovations and
improvements as also of all supply and delivery contracts which it had the benefit For
this purpose a special section of the Company was to be formed which was to a certain
extent ,to be subject to the supervision of the Reich which had the right to share of the
profits resulting from the working of the factory during the financial year.
The Reich had the right ,commencing on March 31st 1926 to terminate the contract for
the management of the factory by the Company on March 31st of any year upon giving
fifteen months’ notice.
The contract could be determined as early as march 31st 1921 always on condition of 15
months notice being given if the Reich’s share of the surplus did not reach a fixed level.
On July 3 rd 1922 M.Ignacy Moscicki who was delegated with full powers to take
charge of the factory at Chorzow by a Polish ministerial decree of June 24 th 1922 took
possession of the factory and took over the management in accordance with the terms
of decree.The German Government contended and the Polish Government did not deny
that the said delegate ,in undertaking the control of the working of the factory at the
same time took possession of the movable property,patents,licences etc.
After having taken over the factory the polish Government entered it in the list of
property transferred to it under Article 256 of the Treaty of Versailles which list was

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duly communicated to the Reparation Commission.The Polish Government alleges that
after the pronouncement of Judgment No.7 by the Court ,The German Government
asked that the factory should be struck out of the list in question, the former
Government has not however been informed whether this has been done. In the
meantime the Oberschlesische on November 15th 1922 had brought an action before the
German-Polish Mixed Arbitral Tribunal at Paris claiming amongst other things that the
Polish Government should be ordered to restore the factory.This action notice of which
was served upon the respondent Government on January 17th 1923 was withdrawn by
the Oberschlesische in June 1928 before the Tribunal had been able to give a decision.
As regards the Bayerische, that Company also on March 25th 1925 brought an action
before the German-Polish Mixed Arbitral Tribunal against the Polish Treasury with a
view to obtaining an annual indemnity until the restitution of the factory to the
Oberschlesische and to causing the possession and management of the factory to be
restored to it.

Notice of this action was served on the respondent Government on December 16th
1925;but the case was withdrawn in June 1928 at the same time as the
action brought by the Oberschlesische and in the same circumstances. The Courts
judgment No 7 was given on 25th May 1926.This judgment was a source of
development tending two different directions :
1. On one hand at the initiative of the German Government it formed a starting point
for direct negotiations between the two Governments concerned in regard to
thosenegotiations it is only necessary here to note that on January 14th 1927 the German
Government had recognized that the factory could no longer be restored in kind and
that consequently the reparation due must in principle take the form of the payment of
compensation ,a statement which is moreover formally repeated in the case.
2. The negotiations were unsuccessful owing amongst other things to the fact that in the
opinion of the Polish Government certain claims which Poland was said to have against
Germany, must be set off against the indemnity to be awarded to Germany .The failure
of the negotiations resulted in the institution of the present proceeding.
The court was being asked

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a) To declare that the Polish Government by reason of its attitude in respect of the
Oberschlesische and Bayerische Companies which attitude the Court had declared not
to be in conformity with the Geneva Convention is under an obligation to make good
the consequent damage sustained by those companies.
b) To award compensation the amount of which is indicated in the application for the
damage caused to each of the respective Companies.
c) To fix the method of payment and amongst other things to order the payments to be
made by the Polish Government to be effected to the account of the two Companies
with the Deutsche Bank in Berlin.
It follows from the foregoing that the application is designed to obtain in favour of
Germany reparation the amount of shich is determined by the damage suffered by the
Oberschlesische and Bayerische .

Three fundamental questions arises

1) The existence of the obligation to make reparation
2) The existence of the damage which must serve as a basis for the calculation of the
amount of the indemnity
3) The extent of the damage.
Similarly in the;
Corfu Channel Case(Merits)1949 I.C.J Rep.4
The I.C.J referred to circumstantial report to hold Albania responsible for the damage to
British Warships holding that : "These indirect evidence is admitted in all systems of
law and its use is recognized by International decisions"
{Lecturer's Explanation: This was the first case that I.C.J heard. A strait is a narrow passage
between two land masses and connects to areas of the sea. It goes from one area of the sea to
another. The Corfu Straight forms the part of territorial waters of Albania. Under I.Lwhen we
talk of territory for a coastal state territory includes the territorial waters E.g. Kenya territory
include that part of Indian Ocean that is called the territorial sea which extends to 12 nautical
miles from the low waters but if this territory forms a strait used for International Navigation
Kenya must allow navigation without interference. What happened in this case was that there
were mines in the Corfu straight and the British Warship came and swept the mines and the

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channel was cleared for navigation subsequently there were two British warship which were
blown by the mines in the straight. U.K sought to hold Albania responsible for the damage of the
warships because it was their territory and there is no way you can say you do not mind the
territory or you do not know who mind the territory .Albania in reply said we did not. Britain in
reply said it was going to rely on circumstantial evidence, that by virtual of this being your
territory you cannot fain ignorance of who mind the channel. I.C.J concurred with U.K because
it was their territory, there is no way Albania could say they did know who minded the territory
hence they were held responsible on that basis. This is similar to the U.S Embassy bomb blast
where Kenyans died and their family have been asking for compensation from U.S. What U.S
gave them was an ex-gratial payment but under I.L they are not obligated to pay them as Kenya
is responsible of providing security, as the host state to the office of the commissioner}
 General principle include procedural and evidentiary principles as well as
principles of substantive law provided that these do possess some character of
generality over and above the context of each particular legal system to which
they belong in common.
 Although General Principles have been validly recognized as a source of
International Law they have been scarcely applied because the jurisdiction of the
I.C.J is founded on consent and the court is very cautious to this part so much so
that even if it is empowered to decide ex aequo et bono it rarely does so.
 Note P.C.I.J cases are referenced as: Series A No.17....(series A are report of the
judgment of the court in contentious cases between states. Like the above was a contentious case
between Germany and Poland.)or Series B No. 1.....( Series B is All the advisory opinions of
the P.C.I.J and are reported as shown) P.C.I.J existed during the days of the league of nations.
The seat of the league of nations was in Geneva.)
 The I.C.J succeeded the P.C.I .J officially in 1946 when the U.N General assembly
resolved to officially dissolve the P.C.I.J and inaugurate the I.C.J.(The seat of the I.C.J is at the
Hague in Netherlands in a building called the Peace Paris but not in the same building as
I.C.C ) Article 38 of the statute of I.C.J was the same as Article 38 of the statute of P.C.I.J. The
I.C.J reports are reported as .e.g. 1949 I.C.J Rep ..pg. There is no distinction made between
judgment in contentious issues and advisory opinions. Until one gets to the law reports that's
when one knows whether it is a judgment in contentious issue or advisory opinion.

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 The ICJ does not have compulsory jurisdiction it has to be accepted voluntarily by the
parties. The ICJ cannot decide without the consent of the state.

4) JUDICIAL DECISIONS AND WRITINGS OF PUBLICISTS

 JUDICIAL DECISIONS.
After enumerating the 3 sources of rulesso far considered, Article 38authorizes the court
to apply judicial decisions and the writings of the most highly qualified publicists as
subsidiary means of the determination of rules of law.
Article 59 of the statute of ICJ’s provides that the courts decisions have no binding
force except between the parties and in respect of that particular case.
This article was not intended merely to express the principle Res Judicata but to rule
out a system of binding precedent. The object of the article is to prevent legal principles
accepted by the court in a particular case from being binding on other states or in other
disputes. The reason for that is because the court has no compulsory jurisdiction and
States must formally accept the jurisdiction of ICJ. There is therefore no binding
authority of precedent in international law and international court and tribunal
decisions do not strictly speaking make law.(so strictly speaking it means that the decisions
of I.C.J are like the decisions of court of appeal in Kenya which bind the high Court and Supreme
court binds the court of appeal).
Although in theory there is the barrier to the adoption of the doctrine of precedent, n
practice the decisions of the ICJ are treated as having the highest authority. State parties
to cases that come before the court, frequently make reference to the decisions of the
court itself and various international tribunals.

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 Even in practice, the court itself has of necessity followed previous decisions in the
interest of judicial consistency and has where necessary distinguished its previous
decisions from the case actually being heard.
For instance, in the Reparation of Injuries Suffered In the Service of the UN case 1949
ICJ report pg 174 the International Court of Justice in its advisory opinion to the U.N
GeneralAssembly relied on the previous pronouncement on the Permanent Court of
International Justice to the International LaborOrganization in 1926.
On 17th September 1948Count Bernadottea Swedish National was killed allegedly by a
private gang of terrorist in the new city of Jerusalem; that part of the city was under
Israeli control. Count Bernadotte was carrying out his duties as U.N mediator in
Palestine. {Lecturer's Explanation: Until 1948 there was no state called Israel .What is the
present Israel,Jordan,Syria,Palestinian Authority were all part of the Ottoman empire. When it
crumbled after the 1st World war, when Turkey was defeated after 1st World war, all the
administration was put under the U.K . U.K was the mandatory state. They were put under the
league of nations. U.K administered the territories on behalf of the league of nations. When
league of Nations goes and U.N comes in the question was what was going to happen? Israel
lobby U.S, U.K, Latin America to go back to their homeland which they were allowed. May 1948
Israel was declared a state and a member of the U.N resulting to a war with Arab neighbors'.
Count Bernadotte is killed when he goes to mediate and the question was what action was the
U.N going to take as he had gone there as a its representative/official and killed in a member
state of the U.N}
In deciding upon the action to be taken in respect of the death, the U.N General
Assembly asked the International Court of Justice for an advisory opinion on 2
questions. Namely:
i) In the event of an agent of the U.N in the performance of his duties suffering injuries in
circumstances involving the responsibility of a state, has the U.N as an organization,
have the capacity to bring an international claim against the responsible dejure or defacto
government with a view of obtaining the reparation due in respect of the damage
caused to the U.N or victim or to person entitled through him?
ii) In the event of an affirmative reply how is action by the U.N to be reconciled with such
rights as may be possessed by the state of which the victim is a national?(The question

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 the U.N General Assembly is asking is :If U.N as an Organization has the ability to ask for
reparation on behalf of its official does that shut out the state of nationality of the official injured
or killed?)

In advising that the U.N had international legal personality with powers to claim
reparation for damage suffered, the ICJ relied on the advice of the Permanent Court of
International Justice to the effect that the International Labor Organization as a
specialized agency of the UN was an International legal personality.
Cases:
1}The interpretation of peace treaties case 1950 I.C.J report pg 65 (This was
interpretation of the peace treaty between Bulgaria ,Hungary, and Romania )
2)Aglo-Nowergian Fisheries case 1951 I.C.J Report pg 116(This was between the U.K and
Norway. In this case U.K objected to methods used by Norway to claim territorial waters of the
North Sea thereby preventing British Fishing fleets from Fishing there)
 WRITINGS OF PUBLICISTS
Although writings of publicists only constitute evidence of customary law, learned
writings can also play a subsidiary role in developing new rules of law. The
contributions of writers such as Hugo Grotius and Gentili were very important to the
formulation and development of International Law.
Besides, writers of International reputation(repute) such as Oppenheim or Professor Ian
Brownlieare often relied upon by legal advisors to states, Arbitral tribunals and courts.
However, much as the writings or teachings of the publicists might have been useful in
the earlier development of International Law, today their utility is limited because
much of contemporary International Law is now conventional law (treaty law/Rules of
I.L are now incorporated in conventions).
Besides, the writings have 2 main limitations namely:
i) Writers reflect certain national or regional prejudices to the rules of International Law.
For instance, the views of an American writer of a particular rule of lawmay be
radically different from those of a 3rd world writer.(A writer of U.S or Britain when
writing he tries to protect the status quo but a writer from the 3rd world writes in such a way

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 as to advocate for changes in the International Legal Order so that the developing world can
have a say.)
ii) Such juristic views may be the writer’s views of what the law ought to be (law de lege
Ferenda) rather than what the law actually is (law de lege lata). There is therefore a
dangerof using proposals of a particular author/writer for existing rules of
International Law.

End of Lesson 4.
cheers. !!!!
NExT class: Is Article 38 of statute of I.C.J exhaustive as a source of I.L even with recent
developments.

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 LESSON FIVE
Are there any other sources of IL?
Does the UN make laws which are binding?
OTHER SOURCES OF INTERNATIONAL LAW
As earlier indicated, the sources of law enumerated in Art. 38Para 1of the statute of the
ICJ are often regarded as comprising the sum of the traditional sources of International
law. Increasingly however this approach is subject to limitation because International
tribunals and courts do in the light of changes taking place in the international society
look to additional sources to give them guidance on the law.{Lecturer's
Explanation:Article 38 of the Statute of I.C.J is not exhaustive when it comes to sources of I.L,
that the I.C.J and other International Tribunals will rely}These sources can in the
circumstances be looked upon as additional sources of International Law.[Soft law]
A. Resolutions, recommendations and declarations of the U.N General Assembly, are
often resorted to not only for their persuasive value on international rights and
obligations but also as evidence of political consensus on various International
disputes. The resolutions may also have a very significant influence on the subsequent
development of International Law and practice. {Lecturer's Explanation: In 1960 for
example, the U.N general assembly adopted a resolution on permanent sovereignty over
natural resources and it as now matured into a rule of customary I.L namely that states have
permanent sovereignty over their natural resources E.g. Kenya has permanent sovereignty over
oil in Turkana and no foreign person or corporate can exploit it without our commission. }For
instance, in the Nicaragua v USA (merits) 1986 I.C.J Rep. 14case:thecourt considered
that the U.N General Assembly resolution 2625 (XXV) (session of the Gen Ass) ‘the
Declaration on Principles of International Law Concerning Friendly Relations and
Cooperation among States was illustrative of customary International law. {Lecturer's
Explanation: This is on referencing of U.N General assembly Resolutions:Resolution
2625(XXV). 2625 refers to the resolutionnumber and (XXV) refers to the session when it was
resolved, which in this case is the 25th session of U.N General Assembly. The Roman numerals
were used up to 1995 and then the U.N General Assembly switched over to Arabic numerals
E.g. Resolution :560/ 70. consequently the resolution here is 560 and it is on the 70th

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session}Similarly in its advisory opinion on the Legality of the threat or use ofNuclear
Weapons (1996 ICJ pg 90) the ICJ held that UN General Assembly resolutions can in
certain circumstances provide evidence important for establishing the existence of a
customary rule or the emergence of an opinion Juris et neccessitatis.
In this case the General Assembly had asked the court for an advisory opinion on the
question: “is the threat or use of Nuclear weapons in any circumstances permitted
under International Law?”{Lecturer's Explanation: The I.C.J has two categories of
Jurisdiction; a) Deciding legal disputes between states b) Giving advisory opinion(legal advice)
to: U.N General Assembly or the Security council on any issue that is referred to it by those two
bodies and also legal advice to specialized agencies of the U.N with respect to matters falling
within their mandate and for them to be given such advice the U.N General Assembly must so
consent.} In this regard hence the U.N assembly sought advice from I.C.J on whether it is
permitted under I.L for states to threaten or actually use Nuclear weapons.
The court after a review of the relevant International legal instrument(E.g.The Nuclear
non-proliferation treaty 1967)as well as the Security Councils’ General Assembly
resolution on the matter reached a resolution thatthe threat or use of nuclear weapons
will generally be contrary to the rules of International Law applicable to armed
conflicts and in particular the principles and rules of humanitarian law.{Lecturer's
Explanation: This shows that the I.C.J looks at the resolutions of the General Assembly not
only for their political consensus but also to see how states have been conducting their affairs.
Remember as we initially established it is state conduct/practice that give rise to rules of
Customary I.L.}Some Analysis: Article 24 of U.N Charter: Paragraph 1 states; In order
to ensure prompt and effective action by U.N, its members confer on the Security
Council Primary responsibility for maintenance of International peace and security,
and agree that in carrying out its duties under this responsibility the security council
acts on their behalf (This means all members of the U.N have given Security councilprimary
mandate(not exclusive mandate because if you look at the charter there is also regional
arrangement that also revolves around maintenance of peace and security) arrangement to
ensure there is International Peace and security(it's the essence of its existence) and when doing
that it acts on their behalf/Agent.

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Paragraph 2;In discharging these duties the security Council shall act in accordance
with the purposes and principles of the U.N. The specific powers granted to the
security Council for the discharge of these duties are laid down in chapters VI,VII, and
XII.(Explanation; Meaning it should act intra-vires. Article 1&2 of U.N charter provides for the
principles& purposes );Paragraph 3 ;The Security Council shall submit annual and, when
necessary, special reports to the General Assembly for its consideration.
Article 25 of the U.N Charter states: The members of the U.N agree to accept and carry
out decisions of the security council in accordance with the present Charter.
{Explanation; The members are telling the security council that it can act on their behalf and
when it takes an action they shall accept/undertake to carry out decisions it has taken. When it
takes enforcement action for I. peace and security, members shall not question such act/decision}
Article 103 of U.N Charter: In the event of a conflict between the obligations( of the
Members of the U.N under the present charter and their obligations (Note; These
obligations include carrying out decisions of the Security Council) under any other
international agreement, their obligations under the present Charter shall prevail.
[Explanation; Thismeans for example that in the event of a conflict between our obligation
under the constitutive act of A.U and our obligation under the U.N Charter the obligation
under the U.N Charter shall prevail. Is the U.N Charter of the view that the security council can
create binding obligations upon member state of the U.N?YES. By virtual of Article 24 of the
charter, members of the U.N gives security council primary responsibility to maintain peace and
security and in doing so it should be in accordance with the purposes and principles of the U.N.
and such purposes & principles are outlined under article 2 of the Charter which
include ;sovereign equality among members, members fulfilling their obligations in good faith,
e.t.c and indeed that what security council does. In Article 25 of the charter, members undertake
to carry out and accept the decisions that the security council has undertaken under Article 24
on their behalf .
Question then is: When we do that, are we not accepting that decisions of the U.N security
council will be obligations to be discharged by us as members? YES.Article 103 hence shows
superiority of U.N obligation.
They override all other obligations, hence we say Security council has powers to create binding
obligations. Then can we extend the discussion further and state that in that particular case the

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 security council will be enacting laws?YES.Under Article 24(3) of the charter shows member
state of the U.N can challenge an ultra-vires decision of the security council hence we say the
security council does not have a blank cheque. Also Article 24 (2) requires it to act in accordance
with purposes and principles of the U.N(Article 1&2). Security council decides and General
Assembly recommends. Article 2(6) shows that when U.N Security council decides on a matter
concerning maintenance of International peace and security all member states, even non -
member states are bound to carry out that decision. Hence we sayunder Article 103 of the
charter those obligations imposed upon the member state of the U.N to maintain International
peace & security that flows from the decisions of the security council will prevail over any other
obligation under any other I.L instrument. Decisions of the U.N security council give rise to
legal obligations.
B. Decisions of the U.N Security Counciltaken in exercise of the powers conferred upon
it by the U.N charter especially under Chapter 7are binding on states.
This is based on the functions and powers of the security council as provided for under
Art 24 and 25 of the U.N Charter read together with Art 103 which provides that in the
event of the conflict between the obligations of the members of the UN under the
charter and their obligations under any other international agreement, their
obligations under the charter shall prevail.{Lecturer's Explanation; In regard to powers of
security council;Article 39 states: The Security Council shall determine the existence of
any threat to the peace , breach of the peace or act of aggression and shall make
recommendations , or decide what measures shall be taken in accordance with Articles
41 and 42 to maintain or restore International Peace and Security.This shows that it is
the security council which decides is this a threat to peace or breach of peace or not. The powers
of the security council are such that when the security council is seized of a particular matter no
other organ of the U.N can discuss that matter .

This is under Article 12 of U.N charter which states that: While the security Council is
exercising in respect of any dispute or situation the functions assigned to it in the
present charter, the General Assembly shall not make recommendations with regard to
that dispute or situation unless the security council so requests.This shows that when a

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matter is seized by Security council no other organ of the U.N can discuss that matter, Example;
The security council passes a resolution and gives Sadam Hussein an ultimatum to get out of
Kuwait and that matter only remain with the security council. The General assembly does not
discuss the matter or any other organ of the U.N. That is why from the day Sadam invaded
Kuwait to the day he was smoked out of where he was hiding and hanged the General Assembly
has never discussed the matter up to today. This demonstrates the powers the U.N Security
Council has in regard to maintenance of International peace and security. That is why once
Security council has taken a decision pursuant to powers given to it for maintenance of
international peace and security, that decision is binds as if it a law. That decision creates a
legal obligation to be so fulfilled. It is not merely a moral obligation or just a recommendation
from the Security council. In contrast during the days of the league of nations the council of
the League of nations could merely recommend but here theU.N Security Council does
recommend when it comes to action taken to maintain or restore International peace and
security. It takes a decisive action and once such action has been taken all member state must
comply..Extra point: Why did the U.N security council react the way it did in Libya? Why
hasn't it reacted the same way in Syria? This is because all along Russia ,a permanent member
of the security council & hence carries veto power has stood with Syria. Note; Any one of the
permanent 5 members of the security council can paralyze its operations. Remember also when
Mahmoud Abbas was recently in the U.S to lobby for Palestine admission to U.N and Obama
said U.S was going to veto. Mahmoud kept quiet because, Article 4 of the U.N Charter,
provides that membership to the U.N is decided by the General Assembly upon
recommendation by the Security Council. So in absentia of such recommendation the
General Assembly cannot on its own initiative vote to admit a particular state into
membership of the U.N. and U.S by virtue of it being a permanent member to the U.N Security
council, could hence paralyze such recommendation to the U.N General assembly or such would
not be made in absentia of its consent.
The situation which was in Rwanda is very similar to the one that was in Libya. The O.A.U
then as a Regional Organization was found wanting or missing in action. It took the
intervention of the then Secretary General of U.N, Boutros Boutros Ghali to U.N for the
Security council to act, when he challenged them that the blood being shed in the Former
Yugoslavia is the same as in Rwanda where you have taken action.Can you please act. At that

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 time the O.A.U was saying African Solutions for African Problems and there is nothing like
that. Today ,the issue of Human rights is no longer a matter within the domestic jurisdiction of
any state. If the situation is such that it is likely to threaten Regional peace and security as it
happened in Rwanda case where Tanzania was complaining that they could no longer
accommodate more than a million refugees from Rwanda ,Kagela Region was over flowing also
Banyamore region of Uganda and the O.A.U was nowhere to be seen. When we were having the
situation in Libya the A.U was nowhere to be seen, yet when you look at the constitutive act of
the A.U, Article IV it allows the African Union to intervene in the internal/ domestic affairs of
the member state. But the heads of state put a silly condition ,that that intervention must be
pursuant to a decision of summit of head of state and government. Here you have a situation
where Gadaffi was Bankrolling the A.U. how were they going to end up deciding against him?
That's why we are saying the A.U was found wanting, but the international community was
not going to sit there and watch the situation in Libya deteriorating to such a stage where it
would be a threat to International peace and security.}
C. UNILATERAL DECLARATIONS
In some instances unilateral declarations of states may give rise to binding
International legal obligations. In such instances the intentions of the state making the
declaration in question to be bound is crucial as will be the element of publicity or
notoriety e.g. state officials including the president, minister of foreign affairs or the
prime minister make declarations then they are binding to Kenya as a country.Equally
crucial will be the element of the good faith on the part of the state makingthe
declaration. {Lecturer's Explanation:Under I.L there are certain categories of state officials,
who by virtual of their functions have the competent to bind states at the international level.
Hence if we have such officials making unilateral statements such would be binding upon their
respective states. E.g. Head of states/govt e.g. President, Foreign affairs minister ,ambassador
e.t.c
An example is :In 1981 there was the official end of the Shifta war between Somalia andKenya
with the intervention of the U.S. This was also when Kenya hosted the O.A.U summit .At the
end of the summit the late Siad Bare President of Somalia, went to state house to meet Moi and
by the end of their meeting there was a joint statement that was issued and at the subsequent
press conference Siad Bare stated that "we are hereby formally renouncing any claim to the

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Kenyan territory" As a head of Government/state he had the competence to bind his state at an
International undertaking. He went out there in the glare of world media and he said socialist
Republic of Somalia had no claim against any inch of Kenyan territory. And as a head of State
such was binding to Somalia hence it marked the official end of the shifta war.
IRREDENTISM-What Somalia was pursuing. It wanted to ensure that territories of Kenya
occupied by Somali speaking people were brought under the jurisdiction of the Republic Somalia
in order to create what was referred to as the Greater Republic of Somalia. In what was the then
North Eastern Province of Kenya, the Idea was not that the Somalia speaking people go back to
Somalia but that Somalia Jurisdiction extends to take the territory where there was any Somali
speaking individual. Indeed they were pursuing the same policy also in respect of Ethiopia. This
was the Ogaden war. Take that place of Kenya & Ethiopia where there were Somali speaking
people and make them part of Republic Somalia.
This is different from secession where it is breaking away from an established territory for
example we had Eriteria breaking from Ethiopia. So in the light of this understanding then,
Uhuru Muigai Kenyatta was to go out there if for example and say Kenya was not going to
contest the case filed by Somalia at the I.C.J, then Somalia will have its way .

In the legal status of Eastern Green land case (Norway v Denmark) (1933) PCIJ rep Ser
A/B No. 53
In this case the P.C.I.J held that the so called Ihlen Declaration was binding on
Norway.After World War 1, Denmark sought to obtain declarations from several of the
Allied Powers to the effect that they would not object to recognizing Danish sovereignty
over the whole of Greenland(Greenland is an autonomous country within the Kingdom of
Denmark located between the Arctic and Atlantic ocean it is the largest Island in the world)
On July 14th 1919, the Danish Minister accredited to Norway(Danish ambassador to
Norway) met M. Ihlen the Norwegian Minister for Foreign Affairs and told him that for
the purpose of considering the claims that may be put forward by different countries, to

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an island in the North Sea called Spitzbergen at the Paris Peace Conference, Denmark
would raise no objection to Norway’s claims upon that Archipelago( Archipelago is a
group of small islands that form a state hence Spitzbergen is a group of small Islands) if
Norway, raised no objections to Denmark’s claim over the whole of Greenland.
{Lecturer's Explanation: There were two claims that were to be put forward at an International
conference and Denmark was saying if Norway raised no objection to its claim to all of
Greenland, it was also not going to raise any objection to their claiming ofSpitzbergen. '
Those making these claims one of them was an Ambassador and the other one the Minister for
foreign affairs and both fall under the category of people who have competent to bind the states.
Here you have a situation where the Danish ambassador to Norway is in a discussion with the
Norwegian Minister for Foreign affairs both top state officials. The ambassador for Denmark
tells the minister of Norway, that Denmark would not raise any objection to their claiming of
Spitzbergen if in turn they do not raise objection to their claiming of the whole of Green land at
Paris peace Conference }
M. Ihlen replied, “that the question would be considered.”(This was on July 14 1919) A
week later, On July 22nd 1919 in a further conversation M. Ihlen made a statement to the
Danish Minister(Danish Ambassador) to the effect that, “The Norwegian government
would not make any difficulties in the settlement in this question.” Denmark sought to
argue that the undertaking contained in this declaration was binding upon Norway.
By Royal Proclamation of July 10th 1931 Norway declared part of Eastern Greenland to
be under Norwegian sovereignty(Remember that the Norwegian foreign minister had
assured the Danish ambassador that Norway was not going to raise any objection to Denmark
claiming the whole of Greenland in 1919 ,but here we are now in 1931, Norway is seeking to
grab part of Greenland)
Denmark also claimed this territory and applied to the Permanent Court of
International Justice for an order to the effect that the declaration of occupation
promulgated by the Norwegian government on July 10th 1931 and any steps taken in
this connection by that government constituted a violation of the existing legal situation
and were accordingly unlawful and invalid.
In giving judgment for Denmark as requested, the court said that, “the court considers
it beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs

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 on behalf of his government in response to a request by the diplomatic representative of
a foreign power(Danish Ambassador), in regard to a question falling within his province,
is binding upon the country to which the Minister belongs... it follows that, as a result
of the undertaking involved in the Ihlen Declaration of July 22nd 1919, Norway is under
an obligation to refrain from contesting Danish sovereignty over Greenland as a whole
and ... to refrain from occupying a part of Greenland.”
1) The Nuclear Tests Cases (Australia vs France and New Zealand v France)This two were
consolidated by I.C.J because they raised similar issues.
A summary of this; France used to carry out Nuclear test South Pacific on an Island called
Muroroa atoll and would give rise to huge cloud of black smoke.Australia and New Zealand
were against this hence sought an order to stop French Govt. from carrying on Nuclear Tests in
the South Pacific as 1)It ended up depositing Nuclear fallout in our territories 2) Those Nuclear
tests endangered the freedom of Navigation of the South Pacific. While the cases were pending
before the I.C.J we had statements made by the President of France & the Minister for Defense
for France. The President of France while addressing the U.N general Assembly in NewYork,
stated that France had reached a stage of atmospheric Nuclear tests, where they were going to
stop anymore atmospheric Nuclear Tests and go underground.
Back home, In France the Minister for Defense tells to French parliament in Paris that the Govt.
had reached a stage whereby it was going to stop further atmospheric Nucleartest and go
underground. Remember, maybe Australia and New Zealand were represented in the U.N
General assembly in New York, but they were nowhere near the French Parliament in Paris.
What happened was the I.C.J seizes upon those two statements and calls Australia and New
Zealand and tells the two states that the issue they had filed in court was now moved.
Why is it moved? Because the French President has made this unilateral declaration in the U.N
General Assembly,& Minister for defense has made this unilateral declaration in the French
parliament in Paris that they are not going to carry out further atmospheric Nuclear tests.
Hence what the two countries wanted had been achieved in a different way so their case was
finalized.
Note: There are those writers who say that anything other than what is contained in Article
38(1) of U.N Charter is Soft law. Hard law is what is in the statute. These writers can be
referred to as Hardcore positivists, who think that anything that is not in black and white cannot

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be said to be law. That it is only that which is stated positively that is law.Note that we have to
look at the practical side of it and one observes that, even the I.C.J is not restricting itself only to
the statute. Soft law contains resolution of the General Assembly, drafts of the International law
commission e.t.c.

Read Article AB Rubin…

Note: - Complimentary Jurisdiction – the I.C.C is not part of the U.N system –
provisions for the member states to bring the I.C.C into the system.

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B. RELATIONSHIP BETWEEN INTERNATIONAL LAW AND MUNICIPAL LAW
Introduction. (Article 2 (6)Article 2 (5).
International Lawgenerally governs relations between states interse ( among
themselves) or between states and other entities upon whom international legal
personality has been conferred. It is generally concerned with the international
community and its legal order.
Municipal law on the other hand is a reflection of state sovereignty and governs the
relations between individuals interse(among themselves), and also between individuals
and the state organs.{Lecturer's Explanation: When we talk ofMunicipal law being a reflection
of state sovereignty will see that, one the characteristics or one of the distinguishing element of
state sovereignty is the exclusive power of a state to make and apply law within its territory to
persons and activities taking place within its territory. So Kenya has exclusive right to make
laws to govern all persons and activities taking place within its territory. That is part of its
sovereignty and when Kenya enacts such laws no person outside Kenya can challenge that law.
The constitution lays down the procedure and mechanism to be used,& once such procedure has
been used to make law nobody outside Kenya can raise a finger against that law. As a sovereign
we can change the constitution tomorrow and for example make Uhuru the life President and no
one can question that, hence we say Municipal law is a reflection of state sovereignty }
Prima facie it would therefore appear that the two are distinct parallels. In practice
however it is common to find the two systems of the law governing one and the same
subject. For instance in the case of expropriation of foreign owned assets, International
Law provides a standard for the expropriation just like Municipal Law does and it is
not uncommon to find municipal law conflicting with International Law
{Lecturer's Explanation: By this we mean I.L does not prohibit Kenya from
confiscating/nationalizing foreign owned assets .e.g. Parliament deciding that we take all assets
of uniliver company. Such company will have a quarrel with us because of lack of prompt and
adequate compensation but not because of us expropriating its assets. That concept of prompt
and adequate compensation is both a rule of I.L & a rule of Municipal law. For
example :Gadaffi's expropriation of international assets in Libya without just compensation.}
Besides, as International Law expands in scope to embrace areas such as Human rights
and Humanitarian issues, Environment and Refugees, there is a corresponding

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reduction in the areas of law that are a preserve of Municipal Law. (Presence of
international conventions in the field of human rights e.g.1966 international covenant of social
economics, convention on international diversity /o-zone layer)
As a consequence there is a relationship between the two legal systems.(meaning that
there are areas where there is an interface between International Law and Municipal Law and
we cannot separate the two from each other) The relationship between International Law
and Municipal Law takes two main approaches which are:
1) the jurisprudential theoretical question as to whether International Law and
Municipal law are two distinct systems of law or whether they are a part of a single
universal legal order.
2) The practical situation where there exist conflict between the rules of International
Law and the rules of Municipal Law before an international tribunal or before a
municipal court.
THEORITICAL APPROACH
Theoretical/jurisprudential Approach on the relationship between International Law
and Municipal Law.
At the jurisprudential/theoretical level, the relation between International Law and
Municipal Law has been cast in terms of the dualist and monist debate.
1) Dualist Theory
Under the dualist theory International Law and Municipal Law are two independent
and separate legal systems. The dualist doctrine/theory is based on the view that
International Law is a law applicable between sovereign states and that Municipal
Lawapplies within a state to regulate the activities of its citizens.
On this basis, neither legal systems has the power to create or alter the rules of the
other. When Municipal Law provides that International Law applies in whole or in part
within the municipal jurisdiction, this is merely an exercise of the authority of
Municipal Law an adoption or transformation of the rules of International Law.
{Lecturer's Explanation:Dualist argue that this two systems are separate, and that I.L can only
apply within the municipal sphere with the express authority of /permission of municipal law.
Unless municipal law says that I.L is applicable in this particular area I.L will not apply
automatically. That is why we have Article 2 of the Constitution of Kenya saying

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I.L/Conventional Law ratified by Kenya will form part of the law of Kenya. There has to be
express provision of Municipal Law allowing I.L to apply. This allowing of I.L is either through
adoption or transformation/incorporation. Article 2 Paragraph 5 of the constitution incorporates
general rules of I.L into our municipal law. Article 2 Paragraph 6 of our constitution transforms
rules of treaty I.L into our Municipal Law and that transformation of rules of I.L or rules treaty
I.L into municipal law is provided for in more details under the Making and Ratification
Treaty Act }
In the case of a conflict between International Law and Municipal Law, a Municipal
court would apply Municipal Law and any conflict at the international level would fall
to be resolved by International Law because it is not only supreme in that field but it is
in effect the only system there is.
The chief exponents of this Doctrine Triepel and Anzilotti (judge of the permanent
court of J).
According to Triepel while the subjects of Municipal Law are individuals, the subjects
of International Law are solely and exclusively states. Accordingly while Municipal
Law binds individuals, International Law binds states.
Besides while the source of Municipal Law is the will of the state itself, the source of
International Law is the common will of states.
On his part, Anzilotti distinguished International Law and Municipal Law according to
the fundamental principles by which each system is conditioned. Whereas Municipal
Law is conditioned by the fundamental principle or grundnorm which is to be obeyed,
International Law is conditioned by the principle of Pacta Sunt Sevanda that is to say
treaties between states are to be observed in good faith. Consequently, the two legal
systems are so distinct that conflict between them is impossible.

2) Monist Doctrine
According to the monist doctrine, International Law and Municipal Law are both part
of the same universal legal order and International Law is supreme even within the
municipal sphere. The followers of this doctrine such as Hans Kelsen and Sir Hersch

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Lauterpacht(One of judges of I.C.J) consider a supreme universal law a more trustworthy
repository of civilized value than the Municipal Law of the nations state.
According to the Monist, it does not matter whether it is the individual or state that is
bound because in the final analysis the state is but a group/collectivity of individuals
looked at as a an entity.
According to the Monists therefore any construction other than Monism is bound to
amount to a denial of the true legal character of International Law. In their view there
cannot be any escape from the position that the two systems because they are both
systems of legal rules are interrelated part of one legal structure.
With respect to supremacy the exponents of the Dualist Doctrine(Dualist)hold that
when there is a conflict between Municipal Law and International Law in a municipal
tribunal, Municipal Law will prevail. The dualist are saying this because to them
primacy is ascribed to municipal law on the basis of the sovereignty of the state will.
{Lecturer's Explanation: The Kenyan Constitution has clear provisions on how law is to be
enacted and it is by the National Assembly as the supreme law making body and it binds
everybody and every activity taking place on Kenyan Territory so in event there is a conflict
between municipal law and I.L before a municipal court, municipal court applies municipal law.
So if there is for example a conflict between a rule of customary I.L and a clear act of parliament
or a decision of the highest court in the land(supreme court),the later takes precedent or prevails.
That means if you are a judge and there is a conflict between rule of customary I.L and an act of
parliament one should apply the act. Article 2(5) of the constitution is incomplete in that it
should have said "the rules of I.L form part of the laws of Kenya in so far as they are not
inconsistent with the act of parliament or decisions of the judicial body in the land.}
However the monists are divided and are not clear in the issue of supremacy. There are
those who attribute/ascribe supremacy to International Law and those who attribute
supremacy to Municipal Law.
For instance, Hans Kelsen makes a structural analysis of both International Law and
Municipal Law by applying his doctrine of the grundnorm and comes to the conclusion
that both systems are supreme depending on the view taken.
However, Kelsen’s view has been criticized particularly on the basis that if International
Law were not the supreme order then primacy would have to be attributed to over one

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 hundred separate systems of Municipal Law which would thereby lead to International
anarchy.{Lecturer's Explanation: Just Imagine Kenya flashing their 2010 constitution as their
grund norm and Uganda their 1995 constitution as their grund norm, & another country comes
and does the same e.t.c such would lead to International kales }
Moreover, the thesis of ultimate primacy of Municipal Law breaks down in two cases:
1) If International Law drew its validity only from grund norm then it would cease to be
in force once the grund norm( constitution) on which its authority rested, disappeared.
Suppose there is amilitary coupwhere the first thing the military leader does is to suspend the
constitution does that mean that rules of International Law are also suspended? What does it
mean?. The certainty however is that the valid operation of International Law is
independent of change or abolition of constitutions or revolutions because International
Law does not lose its force despite internal constitutional changes in states.{ so if we
change constitution tomorrow and make Kenya a one party state or monarchy we would still be
bound by rules of I.L because it is Kenya as a state that is subject of I.L/will be bound by rules of
I.L}
2) Secondly ,International Law binds new states entering into the International community
without their consent and such consent if expressed at all is merely declaratory of the
true legal position e.g. When Southern Sudan comes up and becomes a member of the U.N we
are not going to ask it if it consent to be bound by the pre-existing rules of I.L. It is assumed to
be bound by the pre-existing rules of I.L at International level and that is why I.L becomes
supreme.}
Besides, there is a duty on every state to bring not only its laws but also its constitution
into harmony with International Law.

{Lecturer's Explanation :That is the reason we are saying I.L must be supreme because for
example ;if there is a provision in our constitution which is contrary to a rule of I.L we cannot
get out there before an International Tribunal& say our constitution does not allow as to do
these or that ,that you are asking as to do because we are under obligation to ensure that our
constitution is in harmony with rules I.L ,with International legal obligation we have assumed
as a member of International community.

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But, within the municipal system whether the constitution is in violation of a pre- existing rule
of I.L, or not the high court judges will be bound by the constitution and cannot consequently
say this constitution is in violation of A,B or C because it is the supreme law of the land hence
as the supreme law of the land they are bound to apply it.But when the judge goes to I.C.J they
cannot claim they have the Kenyan Constitution which is the supreme law of the land and
although these provisions are in conflict with I.L we are bound by the Kenyan Constitution
hence we cannot do what such I.L requires .State sovereignty is not absolute }.
It may be argued that municipal law has primacy, as states have wide liberties and
exercise almost complete sovereignty. However ,state sovereignty represents no more
than competence which states enjoy within the limits of International Law. {Lecturer's
explanation: This means that, even the whole doctrine of state sovereignty is not absolute,it is
regative (act of being regulated) in the sense that in the exercise of its sovereignty, Kenya must
keep within the bounds of I.L. for example Kenya cannot claim to be exercising its sovereignty
and for example go around butchering everyone, and say this is our sovereign right we have it in
our law. This the reason we have International criminal law and those who do that will be
arrested as they will not be operating within the limits of I.L } Question the Chinese guys
committing cyber crimes in Kenya on Chinese Nationals, and China government wanting to try
them in China. Where are they to be tried? When one commits an offence in Kenya for example
and is from China, Kenya has jurisdiction upon such person on the basis of territoriality
Principle hence one can be tried under Kenyan Laws , but also China has jurisdiction over such
a person as he is a Chinese National this is on the basis of nationality principle. This results to
an overlap of jurisdiction, and normally & invalidly there is negotiations between the two states
concerned when such occurs.
Also consider where bomb blast on U.S embassy in Kenya and the suspects were not tried in
Kenya but in U.S yet the attack was on Kenyan soil. There was diplomatic exchanges due to
overlap of jurisdictions.
Does the supremacy of International Law therefore rest in the law as a whole or in
particular principles only?
Stag GJ is of the view that supremacy rests only in particular rules and principles. He
uses the analogy of federal constitutions and concludes that just like federal units enjoy

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areas of autonomy not bound by the federal constitution, so do the states in that they
enjoy some areas of autonomy not regulated by International Law.
{Lecturer's Explanation: The first area of autonomy is the area of migration laws . I.L leaves it
to the individual states to decide who can benefit from immigration laws the state enjoys
discretion also in the area of giving Citizenship.}
There are two theories that underlie the application of International Law within the
municipal sphere:
1. The Dualist/Dualist theory(These are the proponents of dualism theory) :
With respect to the application of International Law within the Municipal sphere, the
dualist have put forward the theory that rules of International Law cannot directly&
ex proprio vigore(automatically) be applied within the municipal sphere of state courts.
They must first undergo a process of specific adoption by or specific incorporation into
Municipal Law.
Since, according to the dualism , International Law and Municipal Lawconstitute two
strictly separate and structurally different systems,International Law cannot impinge
upon Municipal Law unless the Municipal Law allows its constitutional machinery to
be used for that purpose. International Law does not apply directly.
In the case of treaty rules the theory is that there must be a transformation of the treaty
into Municipal Law, for instance, by legislation approving or implementing the treaty
provisions which alone validates the extension to individuals of the rules laid down in
the treaties.

{Lecturer's Explanation: This leads/ begs the question :What is the impact of Article 2(6) of the
constitution in so far as the relationship between I.L & Kenyan municipal law is concerned? The
constitution only says that any treaty or convention ratified by Kenya shall form part of the law
of Kenya. How is the ratification process? This takes you to treaty making and ratification
act 2012.
Here we see how the role of parliament has been brought to bear in the whole process of
ratification. So that when that treaty is ratified the parliament will just say "yes" it has
approved that treaty and it has looked at the provisions and it has accepted them to be part of the
law of Kenya.(look at that act).This is an executive(Head of state/Head of Government, Minister

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of foreign affairs) duty or authority. The executive ratifies and has to be transformed into law by
the legislature so that it can be binding upon us. In understanding of the two theories Monist
and Dualist theories, there are those who argue Article 2 of the constitution has turned
Kenya into a Monist state and not dualist. The argument is based on that without that article &
the act /before 2010 ,Kenya would ratify a treaty & after ratification the substance of that treaty
had to be laid before the cabinet as a, cabinet memorandum by the "Parent Ministry" minister.
When cabinet then approves that treaty the provisions of the treaty would be taken to parliament
for parliament to legislate accepting that treaty.
That is why one finds Acts like the Geneva convention act which is an Act of parliament of
Kenya that transformed the full Geneva convention of 1949 on the laws of war into Kenyan law.
This allowed us to use the provisions of the Geneva convention on the laws of war against our
troops in the event they end up violating the provisions of those conventions.
There also exist Acts like the Immunities and Privileges Act which seeks to transform the
provisions of 1961 Vienna Convention on Diplomatic relations into Kenyan Law so that
our courts can extend immunities and privileges to serving ambassadors or high commissioners
of foreign states.
It is only immunity from jurisdiction not immunity from liability. So when asked whether e.g.
the Canadian high commissioner to Kenya is Immune from Civil liability and Criminal liability
in Kenya? NO.}

2. The Theory of Coordination

To avoid a dogmatic dispute between the dualist and the monists Sir Gerald
Fitzmaurice(one time judge of I.C.J) sought to challenge their common premise that
there exists a common field in which the two legal orders both simultaneously have
their spheres of activity.
In his lecture at the Hague Academy of International Law, in 1957 Sir
GeraldFitzmaurice considered that, “the entire monist – dualist controversy is unreal,
artificial and strictly beside the point, because it assumes something that has to exist for there to
be any controversy at all – and which in fact does not exist – namely, a common field in which
the two legal orders under discussion both simultaneously have the spheres of the activity.”

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In what has come to be referred to as The Theory of Coordination, Sir Gerald argued
that the two systems do not come into conflict as legal systems since they operate as
different spheres each being supreme in its own field. {Lecture's Explanation: Sir
Fitzmaurice argues that one can only talk of a conflict between Municipal law & International
law if both of them operate in one common sphere. This is not true because both of them do not
operate in one common sphere. I.L operates at International level and Municipal Law operates at
the municipal level, hence they don't conflict .The reason being in the International Sphere or
field is only I.L exclusively and at the municipal sphere is only municipal law exclusively.
Consequently he comes to a conclusion that the debate between Monist and Dualist was
actually unreal as the two systems do not operate in the same sphere hence there cannot be an
issue of conflict between the two systems}
Formally therefore, International Law and Municipal Law as systems can never come
into conflict(this is because they do not interact). However, there may occur a conflict
of obligations or an inability on the part of the state on the domestic plain to act in a
manner required by International Law.In such cases, if nothing can be or is done to
deal with the matter, it does not invalidate the local law but the state will on the
International plain have committed a breach of its international law obligation for
which it will be internationally responsible.

{Lecturer's Explanation: Example: In 1991,the U.N security council decides to put together a
coalition force to get Sadam Hussein out of Kuwait. It called upon member state to contribute
towards constitution of that coalition force. This is a decision by the U.N Security council which
imposes legal obligations upon member states of the U.N. meaning they had to contribute troops.
Japan refused to contribute its troops towards the war between Iraq and Kuwait stating that its
Constitution provided that its troops could only be used for protection of sovereignty of Japan.
This meant they do not engage their troops in combative missions outside Japan. This hence gave
rise to a conflict of obligations. At International Level Japan had an obligation to carry out the
decision of the security council & at the municipal level Japan had an obligation under its
constitution not to allow Japanese Troops to be used in combative missions outside Japan.
According to Sir Fitzmaurice what was happening was that the obligations of Japan to
the International community under I.L and to its Citizens under its Constitution that

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conflict. Municipal Law & I.L are not conflicting as they are not in the same field of
operation. {UN agreed to Japan refusal and offered 13 billion instead.}.

ENDZ OF LESSON 5!!!!!

LESSON SIX
On the above understanding ,of the above three theories what about what states do at a practical
level :
STATE PRACTICE/ PRACTICAL APPROACH
On a practical level the controversy whether the monist or dualist or indeed Sir Gerald’s
Fitzmaurice Doctrine/ theory of coordination applies is unnecessary. Indeed,
International tribunals, jurists and states show a preference for practice over theory.
Where there is a conflict between rules of International Law and Municipal Law before
an international tribunal it is settled law that International Law is supreme.
Accordingly, a state cannot plead the provisions of its own law, including its
constitution or deficiencies there-in, in answer to a claim against it for an alleged breach
of its international law obligations. This is shown by:The Alabama claims arbitration of

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1872.{Lecturer's brief: Remember our Attorney General Prof Githu Muigai submitting to the
I.C.C judges that Kenya could not give evidence they needed because our constitution did not
permit. This is contrary to I.L}.
The Alabama claims arbitration of 1872:
During the American Civil war a number of ships were build in England for private
buyers(build as commercial ships). The vessels were unarmed when they left England
but it was generally known that they would be fitted out as warships for use by the
Confederate Forces. Despite repeated protests by the US these vessels were allowed to
leave English Ports and after being equipped with armament preyed successfully upon
American High Seas Commerce.
During and after the war, US charged that Great Britain had violated her duties as a
neutral and sought to obtain compensation for the damage suffered.{Lecturer's
Explanation: In the late 1800 Northern part of the U.S in the southern part were engaged in a
civil war, one part wanted to secede from the union, this was in the days of Abraham Linkon as
the President of U.S. Great Britain was an earlier colonial power of the Southern States declared
they were going to be neutral( as per laws of war it means one does not provide any direct or
indirect support to any of the party in conflict).
E.g. a war between TZ and UG and Kenya declares neutrality. Kenya cannot aid in importing
arms through their port to TZ. Kenya cannot allow troops to be flown over their territory to one
of the countries.
Great Britain allows their ship Yards to manufacture ships and sell to private buyers of the
U.S.,knowing very well that when the ships left the English ports they would be retrofitted as
war ships rather than when they left as commercial vesselsand used against the Interests of
Unite states. These ships would be used to commit robbery against U.S ships. Hence G.B had
violated its treaties of Neutrality knowing the above would happen.}
Under the Treaty of Washington of May 8th 1871, it was agreed to submit the
controversy to arbitration. Article VI, of the Treaty contained the following three rules
agreed upon by the parties(Britain & U.S) as applicable to the case and governing the
arbitrators: “a neutral government is bound –
First to use due diligence to prevent the fitting out, arming, or equipping, within its
jurisdiction, of any vessel which it has reasonable ground to believe it is intended to cruise or to

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carry on war against a power with which it is at peace; and also to use like diligence to prevent
the departure from its jurisdiction of any vessel intended to cruise or carry on war as above, such
vessel having been specially adapted, in whole or in part, within such jurisdiction to warlike
use;
Secondly, not to commit or suffer either belligerent to make use of its port or waters as the base
of naval corporations against the other, or for the purpose of the new or augmentation of military
supplies or arms or the recruitment of men;
Thirdly , to exercise due diligence in its own port and waters, and as to all persons within its
jurisdiction, to prevent any violation of the foregoing obligations and duties.”
Great B argued inter alia that under its law as it then stood it had not been possible to
prevent the sailing of vessels constructed under private contracts.{ Lecturer's
Explanation: G.B argued they could not stop the vessels as the buyers of the vessels did not
contract with G.B or U.K Govt. they contracted with private firms and U.K laws did not allow
the Govt. to interfere with private contracts. If it was with the Britain Govt. then they would
have been violating their neutrality. They claimed sanctity of private contracts/property. This
was G.B submission to the arbitrators panel}
The arbitrators found however, that GB had failed by commission to fulfill the duties
prescribed by the Treaty of Washington.
In upholding the supremacy of International Law and rejecting the British argument
the arbitrators said; “---the government of Her Britannic Majesty cannot justify itself
for a failure in due diligence on the plea of insufficiency of the legal means of actions
which it possessed.---It is plain that to satisfy the exigency of due diligence, and to
escape liability, a neutral government must take care that its Municipal Law shall
prohibit acts contravening neutrality.”
Similarly, the Permanent Court of InternationalJusticeemphasized the same pointin
the case of:The Treatment of Polish Nationals In DANZIG 1932.
When it said "it should--- be observed that--- a state cannot not adduce as against
another state its own constitution with a view to evading obligations incumbent upon
it under international law or treaties in force. Applying thisprinciplesto the present
case it results that the question of the treatment of Polish Nationals or other persons

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of Polish origin or speech must be settled exclusively on the basis of the rules of I.L and
the treaty provisions in force between Poland and Danzig".
This case concerned the submission by the Polish and Danzig governments to the P.C.I.J
a memorandum for the courts advisory opinion on interalia the question of the
treatment of Polish nationals and other persons of Polish origin or speech in the
territory of the Free city of Danzig was to be decided solely by reference to Article 104
paragraph 5 of the 1919 Treaty of Versailles and Article 33 Paragraph 1 of the
Convention of Paris(any other treaty provisions in force which may be applicable) or
also by reference of the Constitution of the Free City; and whether Polish Government
was entitled to submit to the organs of the League of Nations, by the method provided
for in Article 103 of Treaty of Versailles and Article 39 of the Covenant of Paris.
Disputes concerning the application to its nationals of the provisions of the Danzig
Constitution and other laws of Danzig. The Polish government complaints against the
Danzig Govt. was that the later made discrimination in administration and legislation
btwn the German majority on the one hand and Danzig citizens of Polish origin or
Polish citizens orother persons of Polish origin or speech or the other.
The P.C.I.J further stated that the application of the Danzig Constitution might result in
the violation of an International obligation incumbent on Danzig towards Poland
whether under treaty stipulations or under general International Law.
{Lecturer's Explanation: This case concerneda submission by the Govt.'s of Poland and Danzig
to the P.C.I.J for an opinion on whether or not Polish Nationals or Polish speakers or those who
were in the Free City of Danzig(Free city of Danzig was created after World War and it was as if
it was a state on its own with its own Constitution ,laws and so forth. This because it was
created it was created under a treaty that was called Treaty ofVersailles 1919.This treaty marked
the formal end of world war 1 and then it created the free city of Danzig as a separate Legal
entity under I.L. In this city there were Polish nationals, and the question fell as to how those
Polish Nationals in the Free city of Danzig would be treated.Would they be treated according to
the 1919 Treaty of Versailles or according to the Constitution of Danzig. In answer to this the
P.C.I.J held that Danzig could not rely on its own Constitution but they must rely on the Treaty
because their own Constitution may in fact be in violation of I.L hence they could not claim that

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their Constitution allowed them to do this and not that when the Treaty of Versailles clearly
stipulated stated how they should treat the Polish Nationals}
The principle of International law that International law prevails over municipal law
before international tribunals was reaffirmed by
International Court of Justice in its
ADVISORY OPINION IN THE U.N HEADQUARTERS AGREEMENT CASE 1988
I.C.J REPORT PAGE 3.
{Lecturer's Explanation: A Background of this case: There is a Liberation movement called
P.L.O(Palestinian Liberation Organization). From the late 60's to early 80's, the U.N General
Assembly was actively involved in Decolonization and Political independence of those territories
that were not self Governing. U.N general Assembly came up with resolutions urging the
Administrators or the colonial powers of non-independent states to facilitate their self
governance so that they become members of the U.N and indeed that worked so much that by the
early 80's most of the non-self governing territories whether they were trust territory or colonies
e.t.c were independent.
This decolonization led to a flood of the membership to the U.N and within a few years the
A.N.C of South Africa had observer status at the General Assembly and S.W.A.P.O(South west
Africa People's Organization) had an observer status and it maintained an observer mission at
the U.N, the P.L.O(Palestinian Liberation Organization)had an observer mission at the U.N in
NewYork. What happened that led to this advisory opinion by the I.C.J ? This was that the
General Assembly invited the lateYasser Arafat as Chairman of P.L.O(Palestinian Liberation
Organization) to address the General Assembly on the situation in Palestine.
When the U.N General Assembly did that, U.S claimed that under their Terrorism Act they
indeed were required to close down the office of P.L.O(Palestinian Liberation Organization) in
New York and they were not going to allow Yasser Arafat to travel to U.S.A and hence they
would not give him a visa to come to U.S. They asserted that as far as they were concerned
Yasser Arafat was World Terrorist number one. After U.S refused completely the General
Assembly had no option but to relocate that particular session to Geneva in Switzerland. The
session was not held at the Headquarters of U.N in New York, but in Geneva where Yasser
Arafat came and addressed the U.N general assembly. Why Geneva? At that time Switzerland
was not a member of the U.N & in fact that was what facilitated relocation although it had

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signed various agreement with the U.N regarding the U.N offices in Geneva. During the days of
the league of Nations its seat was in Geneva.
The assembly hall that was being used by League of Nations was still there and hence the session
was held there and Yasser Arafat was invited& addressed the General Assembly. In the mean
time the General Assembly referred the matter to I.C.J for an advisory opinion .It asked: In the
light of the Headquarters agreement between the U.N and the General Assembly was the U.S
justified as a party to refuse Yasser Arafat to enter the U.S and address the U.N. /Was it in
violation of the headquarters agreement. U.S claimed that their anti terrorism Act did not allow
Yasser Arafat to come to U.S and indeed that is why we want to close the P.L.O(Palestinian
Liberation Organization)observer mission to the U.N in New York. This is why the I.C.J is
called upon by the U.N General Assembly to advice them as to the position in regard to
this issue.}

Headquarters Agreement Facts.

On March 2nd 1988, the U.N General Assembly asked the court to give an advisory
opinion on the following question – “In light of facts reflected in the report of the
Secretary General, is the United State of America, as a party to the agreement between
the U.N and the U.S regarding the headquarters of the U.N, under an obligation to enter
into arbitration in accordance with Section 21 of the agreement" The Attorney General
of the U.S had determined that he was required by the U.S Anti-terrorism Act of 1987
to close down the office of the P.L.O Observer Mission to the U.N in New York,
irrespective of any obligations the U.S may have had under the agreement between the
U.N and the U.S regarding the headquarters of the U.N”
The court was unanimously of the opinion that the U.S was under an obligation to enter
into arbitration for the settlement of the dispute between itself and the U.N.
In the course of its opinion, the court stated that “it would be sufficient to recall the
fundamental principle of international law that international law prevails over
domestic law. This principle was endorsed by judicial decision as long ago as the
abitral ward of 14th Sept. 1872 in the Alabama case... ,and has frequently been recalled
since.”{Lecturer's Explanation: The I.C.J as the successor of P.C.I.J endorsed in the above case

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the Principle of Supremacy of I.L over a municipal Law before an I.L tribunal. The I.C.J is telling
the General Assembly that the U.S could not rely on its Anti-terrorism Act of 1987 as
justification for not submitting to the Arbitration under the Headquarters agreement between
the U.N and the U.S .That agreement provided that in the event of a dispute between the U.S
and the U.N that dispute is to be submitted to the Arbitration.
The U.S in breach of that agreement, decided not to submit to Arbitration but just close down
the office of P.L.O(Palestinian Liberation Organization) Observer Mission in New York }Exam
Compulsory Question. [In light of these the Attorney General of Kenya was VERY wrong in
his submission in I.C.C . ]

THE PRINCIPLE OF PRIMACY OF INTERNATIONAL LAW.

The principle of primacy of International Law over Municipal Law before International
Tribunals applies to all aspects of a state’s Municipal Law, that is to say: its
constitutional provisions, its ordinary legislation, and the decisions of its court.{We
cannot plead /raise a decision of the Supreme Court or a provision of Act of Parliament before
I.C.J and say we cannot do this or that because such is contrary to any of the mentioned(it is the
entire Municipal Regime). So if Municipal law conflicts with I.L before an International
Tribunal we cannot rely on any aspect of Municipal Law}
N/BThe conflict between a states Municipal Law and its International obligations
does not necessarily affect the validity of that law or the Municipal plane. Accordingly
a Municipal Act contrary to International Law may be internally recognized as valid
but other states will be under no duty to recognize its external effects.{Lecturer's
Explanation: When Kenya comes up before an International Tribunal and it shoots down its
constitutional provision ,or a decision of Supreme Court ,or a provision of an Act of Parliament
that does not mean that constitutional provision ,or a decision of Supreme Court ,or a provision
of an Act of Parliament is invalid within Kenyan Jurisdiction because that act of parliament for
Example has been enacted by the Parliament pursuant to our Constitution provisions. The
constitution says the parliament of Kenya is the Supreme law Making body hence when

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parliament makes such a law it will have all the force in Kenyan Territory regardless of whether
or not it is against a provision of I.L .This is also because International Tribunals and
International Legal order does not Legislate for Kenya. We will follow our own constitutional
procedure and the validity of that constitutional procedure in the light of I.L will be tested by an
International Tribunal. But that does not mean that when an International Tribunal says
'Hey,this act of parliament of Kenya is contrary to a rule of I.L, that that Act seizes to apply.
That act will continue applying until amended or repealed pursuant to our own legislative
procedure. Kenya exercises is sovereign and exercises such sovereignty within the territorial
boundaries of Kenya outside Kenya is not sovereign. Kenya sovereignty is limited to its
territory.
That is why Kenya cannot enact a piece of legislation governing persons& activities in Uganda.
Kenya has all the powers to enact legislation governing all persons on Kenyan Territory whether
foreigners or Kenyan Citizens.
Indeed no activity can take place on Kenyan soil which is contrary to Kenya's law. The point
here is Kenya still has sovereignty in so far as its territory is concerned & hence when it comes
to enacting legislation on Kenyan Soil. Nobody outside Kenya can tell Kenya what to do because
that is Kenya sovereign right. When it comes to judicial interpretation & determination of
Kenyan laws nobody outside Kenya can tell the supreme court how to interpret& apply Kenya's
law. When it comes to enforcement of Kenyan law nobody outside Kenya can tell the Executive
how to enforce those laws. Though if the enforcement of those laws or if interpretation &
determination of those laws violate rules of I.L then Kenya becomes responsible at an
international law for the consequences. So much that for example if the Supreme court were to
deliver a decision that is clearly contrary to a rule of I.L and a foreigner in this country suffers
damage Kenya will be responsible. So if for example :a Uganda ambassador is in Kenya he is
entitled to privileges and immunities and one of the immunity and privilege is personal
inviolability. We cannot arrest him or detain him even when he has committed an offence. The
moment we arrest him because he has committed an offence we are now violating a rule of I.L &
Uganda will proceed against us. Why are you doing this?}Know how: Before the I.C.C was
established in 1998 there was no International Tribunal with Criminal jurisdiction to try
individuals charged or alleged to have committed International Crimes. Before the I.C.C or
Rome statute there was the 1948 Genocide Convention.(It defines Genocide)& Genocide had

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been committed all over. Idi. Amin Dada in Uganda committed genocide but the problem with
that convention was that criminal jurisdiction rested with the courts or the state where Genocide
had taken place & hence it became impossible to hold these people to account for acts of
Genocide. The International community then asked how it could hold these people to account
hence in 1993 & 1994 the U.N Security council adopted statutes creating Adhoc criminal
tribunals for former Yugoslavia & Rwanda in the absence of Permanent Institution to hold
people responsible for Genocide into account.(The Arusha Tribunal is winding up formally this
year( in 2015).For former Yugoslavia has wound up) We now have I.C.C as a Permanent
Institution for holding individuals responsible for what are now called International crimes }

When a conflict arises between International Law and Municipal Law before a
Municipal Tribunal what is the position?(When conflict arises in municipal
tribunals what is the position?)
The principle of the supremacy of International Law does not have a good ground in
the Municipal Law system. International Law is not concerned with the instruments
that states use to implement the international engagement. Its concern is that states
effect their engagements in the manner most suited to them. The matter is normally
determined by the constitutional law of the state concerned. For instance the
constitutions of many states provide for the adoption of rules of International Law by
incorporating or transforming them into their Municipal Law systems.
{Lecturer's Explanation: Article 2 paragraph 5 & 6 of the Kenya Constitution .Paragraph 5
provides that: The General rules of I.L shall form part of the law of Kenya. Paragraph 6 provides:
Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this
constitution. That is what we are talking about by adopting rules of I.L into our municipal law
system. We use the word incorporation to refer to rules of customary international law. They are
incorporated into our municipal law system subject as we shall see to their not being in conflict
with an act of parliament or a decision of the highest judicial organ. We use the term
transformation to refer to rules of treaty I.L. Those are the ones , that must undergo the process
of transformation normally by an act of parliament. That is why one should go to library and

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read the Geneva convention Act and see how the Kenyan parliament transformed the 1949
Geneva conventions on the laws of war into Kenyan law.
Read the immunities and privileges act and see how the Kenyan parliament transformed the
provisions of the 1961 Vienna convention on diplomatic relations & 1963 Vienna Convention
on Consular relations into Kenyan Law. Read the Bretton Woods act& see how we transformed
the Articles of agreement of the World Bank & I.M.F group into Kenyan Law. The latest one is
the year 2000, the treaty establishing the East African Community Act & see how we
transformed that treaty into Kenyan Law.}
let's see what happens elsewhere we shall come back to Kenya legal system:

THE PRACTICE IN THE U.S

In the United States of America for instance,Rules Of Customary International Law are
administered as part of the law of the land and Acts of Congress are construed so as not
to conflict with them/there with, although a letter clear statute will prevail over earlier
rules of customary International law.
{Lecturer's Explanation: Rules of Customary International law are part of the municipal law of
the U.S and Acts of Congress will be construed so as not to conflict with those rules but in the
event there is a letter statute which is at variance with the pre-existing rules of customary I.L the
clear statute will prevail over those variables of customary I.L.}
In so far as Treaties/Conventionsare concerned Article VI (2) of the constitution
stipulates that, “all treaties made or which shall be made under the Authority of the
U.S shall be part of the Supreme law of the land.{Lecturer's Explanation: When one reads
the U.S Constitution which is by the way the shortest Constitution Professor F.D.P Situma has
come across and which has been amended not more than 24 times since 1776 one sees that it is
very clear that before President ratifies or accedes to any treaty , the text of that treaty must be
placed before Congress and it studies that treaty and Congress must vote to Authorize the
President to sign the instrument of ratification and when it does so the treaty there afterwards
becomes part of the law of the U.S. It's important to note that there is nothing like the president
ratifying and then the treaty going to the congress and then the congress coming up with an act
transforming the treaty into American law. For U.S it is the other way round. The text of the

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treaty is placed before Congress& it must debate that treaty ,look at the Pros and Cons of the U.S
becoming a party to the treaty, what does it mean for the Constitution, What does it mean
politically, What does it mean Economically, How is that treaty it is going to ratify going to
affect the jurisdiction of various states that make up the union(U.S.) That is 50 states.)Then
congress votes and says that Mr. President, the truth is that the majority of the congress has or
has not authorized you to sign the instruments of ratification to the treaty or instruments of
accession. Only when authorized does Obama take his pen and sign with his left hand because he
is a leftie. Unless & until there is that2/3 majority vote by the congress he cannot do it.If you
want to know how powerful the U.S congress is, look at the history of the league of nations.
After World War 1 president Woodrow Wilson of the U.S was one of the Architect of the league
of Nations together with the U.K. They got the covenant of the league adopted & Woodrow
Wilson took it to the congress so that congress allow him to ratify it and U.S become a member
of the League of Nations and Congress duly refused or said NO! and consequently the U.S
stayed out of the league of nations .U.S was not a member of the league of nations just because
congress, in fact just by one vote said NO! and that was it}
Besides, a distinction is made between self executing and non self executing treaties.
The former(self executing) are those which do not in the view of American court
expressly or by their nature require legislation to make them operative within the
Municipal field and that is to be determined with regard to the intention of the
signatory parties and the surrounding circumstances.
If the treaty is within the terms of the constitution and it is self executing then under the
constitution it is deemed to be operative as part of the law of the Land(U.S) and will
prevail also over a rule of Customary International Law. {Lecturer's Explanation An
Example of a self executing treaty is Strategic Arms Limitation Treaty(S.A.L.T) which was a
treaty between U.N & former Soviet Union. It is a bilateral treaty between U.S & the former
Soviet Union for purposes of disarmament. The moment President Richard Nixon of U.S and
Soviet Secretary General Leonid Brezhnev signed that treaty it became operative immediately.
Why? Because not only of the intention but also because of the surrounding circumstances.
This is the agreement to limit the Nuclear Arms. Remember it was within the terms of the
Constitution because the Constitution gives the president the Executive powers. In fact some of
these self executing treaties are called state contracts (they are between two states) }

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Self executing treaties ratified/concluded by the U.S are binding on American courts
even if in conflict with previous American statutes provided there is no conflict with the
constitution.
SALT I and II (Strategic Arms Limitation Treaty)
On the other hand treaties which are not self executing but require legislation are not
binding upon American Courts until the necessary legislation is enacted.

Besides, if the relevant treaty purports to deal with a particular subject matter in respect
of which the Congress has exclusive legislative powers the treaty will be considered as
prima facie non-self executing irrespective of what the intention of the parties is claimed
to be. (What it means is that in a situation like that the treaty must be brought before congress
and the constitutional procedure has to be complied with before it is applied to the American
people}.
THE U.K PRACTICE .
The U.K practice is similar to that of the U.S in so far as the Rules Of Customary
International Law are concerned. Under the Doctrine Of Incorporation, Rules Of
Customary International Law are automatically part of English law as long as they are
not inconsistent with acts of parliament or authoritative judicial decisions.(authoritative
judicial decision come from the highest court of the land in U.K which is House of Lords)
In Regard to Rule of Customary International Law HOW IS THE U.K OF PRACTICE
The doctrine of incorporation is supported by a long line of authorityFor instance, in the
case of Buvot v. Barbuit (1737), the Lord Chancellor Talbot declared unambiguously
that' the law of nations (International law), in its full extent was part of the law of
England',so that a Prussian commercial agent could not be rendered liable for failing to
perform a decree.
The principle that British courts cannot apply International law when there is a
conflict between customary International law and an Act of Parliament is illustrated
in the case of:Mortensen v. Peters (1906).
The appellant a Danish master of a steam trawler registered in Norway was charged
with and convicted of a contravention of the Sea Fisheries Act and Herring Fisheries
(Scotland) Act by Otter trawling in Moray Firth at a distance of more than 3 marine

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miles from the nearest land. The 2 acts and a bylaw enacted by the Fisheries Board in
1892 prohibited the fishing method in question in the Firth. The appellant appealed
arguing that only to British subjects or persons within British territory were the statutes
and bylaws applicable and that the place in question, that is, the location where the
alleged violation of the law had taken place was outside the territorial jurisdiction of the
Crown under international law and therefore not subject to the statute and the Bylaws.
The defendant argued in reply that the terms of the statute and the bylaw were
universal and that even if international law were applied the offence had been
committed in British waters and that even if the Firth were not all together part of
British territory for all purposes the British government was fully entitled to undertake
protective measures as regard fishing in those waters.
3 issues arose for decision by the court. Namely:
1. Whether a British statute applied not only to British subjects but to other persons
within British territory?
2. Whether the waters of the Firth outside the 3 miles limit of British territorial
waters and hence subject to British jurisdiction?
3. Whether domestic courts were bound by a statute contriving a rule of
International law?
The court unanimously ruled in the affirmative on all the 3 issues and upheld the
conviction of the appellant. The court said that it didn’t have to decide whether an act
of the legislature was ultra vires as in contravention of generally acknowledged
principles of International law because “for us an Act of Parliament, duly passed ... and
assented to by the King is supreme and we are bound to give effect to its terms... it is a trite
observation that there is no such thing as a standard of International law extraneous to the
domestic law of a Kingdom to which appeal may be made. International law, so far as this court
is concerned is the body of doctrine regarding the International rights and duties of states which
has been adopted and made part of the law of Scotland.”
Once the scope of such rules of customary law have been determined by British courts,
all British courts are thereafter bound by that determination. Accordingly, a rule of
customary International Law will be treated as incorporated into the domestic law of

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the U.K so far as it is not inconsistent with the rules enacted by the statute or finally
declared by tribunals.

IN REGARD TO TREATIES HOW IS THE U.K OF PRACTICE

As far as treaties are concerned, the position is different. This is because in the U.K the
conclusion and ratification of treaties are within the prerogative of the Crown.
Parliament has no part to play in this process.
Hence if the courts were to directly apply treaties in Municipal law, the crown would
be in a position of being able to alter English law without parliamentary consent.
{Lecturer's Explanation: What we are saying and this is true is that: Under the Vienna
convention on the law of treaties negotiations, adoption, signature, ratification or accession are
strictly speaking executive functions. Executive functions in the sense that they can only be
carried out by people with competence to bind the state by virtue of their functions. The head of
state ,the head of government, has the powers, has the competent, to bind his or her
state.Ministers for foreign affairs have the powers or have competence to bind their states to
International agreements. Our permanent representative to the U.N for example has the
power or competence to bind Kenya to any agreement negotiated under the auspices of the U.N.
All those are Executive officials. What this means is that if the courts of the U.K were to directly
apply treaties into municipal law ,that would mean that it is the executive that is legislating yet
under the Constitution it is the parliament that has legislative powers. Ratification is an
executive act hence ministers, head of Govt., ambassadors. e.t.c are the ones that sign the
instrument of ratification & all those are executive officialsand yet our constitution says it is the
parliament that has powers of legislation.}
Accordingly treaties are part of English law only if an enabling act of parliament has
been passed to transform the provisions of the treaty into English law. As a convention
(that is as a practice in the U.K) all treaties subject to ratification are laid before
parliament for 21 days on which it is sitting for debate before they are brought into
force by the U.K. This is illustrated by the:International Tin Council cases 1990 Vol.2 .
418 :where the House of Lords confirmed the rule that English court could not examine
the International Tin Agreements to establish the liability or otherwise themember

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states of the Tin council. This is because at this time the International Tin agreements
were not part of the law of the U.K.
The cases concerned several actions brought by creditors against the International Team
Council after it was unable to meet its dates.
The council was founded by a treaty, the Sixth International Team Agreement which
operated in the United Kingdom pursuant to a Headquarters Agreement although
neither treaty was incorporated or transformed into the National law of the U.K. The
claimants argued that the treaty provided them with a right of action against the state
parties directly rather than the International Team Council. The House of Lords
unanimously rejected the claimant’s argument holding as per Lord Templeman: “A
treaty to which Her Majesty’s Government is a party does not alter the laws of the
United Kingdom. A treaty may be incorporated into and alter the laws of the United
Kingdom by means of legislation. Except to the extent that a treaty becomes
incorporated into the laws of the United Kingdom by statute, the courts of the United
Kingdom have no power to enforce the treaty rights and the obligations at the behest of
a sovereign government or at the behest of a private individual.”
There are however, 2 exceptions to the above rule on the
Direct Applicability Of The Treaty Rules.
A. First under the provisions of the 1957 Treaty of Rome which established the
European Communities (now the European union) treaties adopted and laws
enacted by the European Community prevails over the Municipal Laws of the
member states and bind their courts. This is because community law/European
community law is neither foreign nor external to the legal systems of the member
states.This is in that it forms an integral part of national laws, Community law has
direct applicability, direct effects and supremacy and establishes a member state’s
liability for damage to individuals caused by a breach of community law for which
that member state is responsible.{Lecturer's Obiter dictum: We haven't reached that
stage yet ,so laws adapted by the East African Legislative Assembly do not directly apply do
they? When you graduate to come and do the law of International Organization, you will
see how unique the European Union is. The E.U participates together with the member

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 states in the negotiations of International Treaties and conventions. It will ratify/sign the
conventions as if it is a state. That is what the cost of the provisions of various treaties }
B. Besides, decisions of the European Court of Justice, as the final interpreter of
European Union Law are to be applied by the National Courts of member states
The 1950 European Convention on Human Rights applied directly to the U.K and
the provisions thereof were applied by the U.K courts. However, in 1998 the U.K
parliament enacted the Human rights Act in order to domesticate the provisions of
the convention. Before then, any cases involving Human Rights issues could only be
brought before the European Commission and the European Court of Human
Rights. whose decisions were binding on U.K courts.
{Lecturer's Explanation: This means that in so far as the rules of customary International
law were concerned they had to / they were taken as being incorporated into municipal law of
the states except when they were inconsistent with clear Act of parliament or the decisions of
the highest court on the land}
POSITION IN SOUTHAFRICA
Section 231 of the 1996 Constitution of the Republic of South Africa:
It provides that International Agreements shall bind the republic only after they have
been approved by Resolutions in both the National Assembly and the National
Council Of Provinces. International Agreements become law in the Republic when they
are enacted into law by national legislation but self -executing provisions of an
agreement that has been approved by parliament are law in the Republic unless
conflicting with Constitution or an Act of Parliament.
Section 232 Constitution of the Republic of South Africa provides in the respect to
Customary International law that the same is law in the Republic unless is
inconsistent with the Constitution or an act of Parliament.
Explanation of South Africa Position by the Constitution:
Section .231.States : International agreements.-(1) The negotiating and signing of all
international agreements is the responsibility of the national executive.
(2) An international agreement binds the Republic only after it has been approved by
resolution in both the National Assembly and the National Council of Provinces, unless it is
an agreement referred to in subsection (3).

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(3) An international agreement of a technical, administrative or executive nature, or an
agreement which does not require either ratification or accession, entered into by the
national executive, binds the Republic without approval by the National Assembly and the
National Council of Provinces, but must be tabled in the Assembly and the Council within a
reasonable time.
(4) Any international agreement becomes law in the Republic when it is enacted into law by
national legislation; but a self-executing provision of an agreement that has been approved
by Parliament is law in the Republic unless it is inconsistent with the Constitution or an Act
of Parliament.
(5) The Republic is bound by international agreements which were binding on the Republic
when this Constitution took effect.
Section 232: Customary international law.-Customary international law is law in the
Republic unless it is inconsistent with the Constitution or an Act of Parliament.
Section 233 : Application of international law.-When interpreting any legislation, every court
must prefer any reasonable interpretation of the legislation that is consistent with
international law over any alternative interpretation that is inconsistent with international
law.
WHAT IS THE POSITION IN KENYA?
Although the independent Constitution was silent in the matter the practice was that in
case of a conflict between International Law and Municipal Law, Municipal law will be
held to prevail.This is illustrated in the case of OKUNDA & ANOTHER .(must read)
OKUNDA &ANOTHER VS REPUBLIC(1970) E. A.L. R.
This is where the high court stated "If we did have to decide a question involving a
conflict between Kenyan Law on the one hand and principles or usages of International
Law on the other--- and we found it impossible to reconcile the two we as a municipal
court would be bound to say that Kenyan law prevailed---If the Kenya law being
considered is the Constitution of Kenya and we allowed the treaty to prevail , we would
in effect be allowing an amendment of the constitution otherwise than in the manner
laid down in Section 47(of the then Constitution). That cannot be done either by us or
by any other tribunal. On appeal the court of Appeal held that treaties do not become
part of law of Kenya until made so by the Law Of Kenya.

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The court stated "The provisions of a treaty entered into by the Government of Kenya
do not become part of the Municipal law of Kenya save in so far as they are made such
by the law of Kenya. If the provisions of any treaty, having been made part of the
municipal law of Kenya, are in conflict with the Constitution of Kenya, then to the
extent of such conflict ,such provisions are void.
{Lecturer's Expounding on The Practice in Kenya: The above was the position before the 2010
Constitution.What is the current position? Has the Constitution 2010 changed Kenya's treaty
practice or its practice? Are we still saying the same thing as we said in 1970 or as in
the:Okunda's& Another vs. Republic Case? What does Article 2(6) of the 2010 constitution
tell us about treaties ? Paragraph 6 States: Any treaty or convention ratified by Kenya shall
form part of the law of Kenya. Kenya has ratified many treaties, supposing there is a treaty
conferring certain rights to me, can I come to you as Judge for an order under Article 2
paragraph 6 for an order that the state or government of Kenya provides what that treaty
confers upon me? }
 THE EFFECT OF RES-JUDICATA
There is no effect of Res Judicata from the decision of a Municipal court so far as an
International tribunal is since although the subject matter may be the same the parties
will not be and the issues will have very different aspect. In the Municipal court the
legal person claiming is an individual or a corporation. Before an International tribunal,
the claimant will be a state exercising diplomatic protection with respect to its Nation.
Similarly, a decision of the International Court does not of itself create a Res Judicata for
the Municipal court.{Lecturer's Explanation: This means that for Example a citizen of
Uganda has a claim against the Kenyan Government & he goes all the way up to Supreme court
in Kenya & is not satisfied that justice has been done. What does he do? Under I.L he has the
right to go back to Uganda and tell his government that he was wronged by the Kenyan
Government and was not as it were satisfied with the decision of the supreme court of Kenya.
I want my government in exercise of the right of diplomatic protection which is the right
conferred by I.L upon states to take up issues of their citizens wherever they are/protect their
citizens wherever they are, so I want the Uganda government to take up my claim against the
Kenya Government. When the Museveni Government takes up that claim, two things will
happen.

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One it will now turn from being The individual citizen of Uganda versus Kenya government to
being Uganda vs. Kenya. The government of Kenya will be acting on his behalf. Secondly when
it turns to be Govt. of Uganda vs. Govt. of Kenya it cannot be filed in a municipal court either in
Kenya or Uganda. It will have to go to an International tribunal. When it does go to an
International tribunal Kenya cannot come up and say" Hey, we are pleading Res-judicata
because this matter was finally determined by our Supreme court that is what we are saying
here".So that before an International Tribunal Kenya cannot plead Res-judicata because as we
have established at the International Tribunal the parties will be different as it will be Uganda
vs. Kenya and furthermore the wronged Uganda citizen by Kenya will may be appear as a
witness but otherwise he will not feature anywhere in the proceedings hence we say the subject
matter may be the same but the parties will not be & issues will have a very different
aspect. Here is nowUganda claiming against Kenya for violation of an International law rule
conferring certain rights upon wronged Uganda citizen by Kenya.
We are also saying/established that the decision of the International court does not of itself
create a res-judicata for the municipal court.
So when Uganda takes this matter to an International Tribunal & the International Tribunal
rules in favour of Uganda that does not mean that there is as it were, Res-judicata created for the
Kenyan Court. Because that is a different forum and the Kenyan court a different forum. Any
question?Student Question; Question of media suing? Answer: The media in Kenya talking of
suing the Govt. was talking of court which even does not exist. What is happening is a matter
squarely within the Kenya Jurisdiction and even if the media houses as it were displeased with
the decision they cannot go to an International Tribunal because they are not states. The only
International Tribunal where individuals have Locus Standi is what is called the International
Centre for Settlement of Investment Disputes(I.C.S.I.D). Remember the case of Nasir Ali and
duty free shops that were in the our International Airport.
That case ended up there. That is the only International tribunal I know of that gives Locus
Standi to Individuals & Corporations&is a special in that there is what is called International
Convention of Settlement of Investment disputes between states parties to the Convention and
Individuals & Corporations belonging to other state parties to the convention. So it has that
special jurisdiction given to it.

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There is the International telecommunication Unionwhich deals with disputes between
member states and not individuals & allocates wavelength to T.V'S and Radio stations.
If one wants to start a radio station in Parklands one must apply for a license from
Communication Authority of Kenya which in turn would then have to lias with International
telecommunication Union so that your broadcast are not interfered with/jammed and hence .
Read on Compromis – ad hoc basis to go to the I.C.J

CONCEPT OF OPPOSABILITY

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The concept of opposability which is now part of contemporary international law is of
value where the relationship between international law and Municipal law is
concerned.
In contentious cases, before an international tribunal one of the parties may invoke a
rule, institution or regime under its own domestic law in order to oppose the other
party’s claim. For instance, in a claim before an international tribunal between states A
and B, where A relies on some ground in support of its claim, state B may seek to
invoke as against state A (that is oppose state A) some rule, institution or regime under
B’s domestic law in order to defeat the ground of claim set up by state A.
As a general principle, if the domestic rule, institution or regime is in accordance with
international law this may be opposed to state A in order to defeat its ground of claim.
However, if the rule, institution or regime is not in accordance with international law it
may not be so opposed.
Explanation of the North Sea Continental Shelf Cases:
You have Netherlands & Denmark visa vis the Federal Republic of Germany as it then was or
used to be called West Germany. They seek to rely on a rule of conventional law in pursuit of
their claim against West Germany.West Germany claims that it is not bound by that rule of
conventional law. Why? Because it was not a party to the particular convention. It claimed as
it were, freedom from the provisions of that convention because we are not a party to the
convention. Netherlands& Denmark say "NO". This is because, that particular provision is
part of our municipal law and we are going to invoke it to oppose your claim that you are not
bound by the convention .Because that particular convention is part of Customary I.L. Denmark
and Netherlands are seeking to rely on a rule that they allege that it is part of their municipal
law to oppose Germany's Claim at the International Tribunal.
Germany's claim it is not bound by the provisions of the 1958 Geneva Convention on the
continental shelf because it is not a party to the convention.
Remember what we said that ,that rule, that regime, that institution must not only be part of the
municipal law of the state invoking it but must also be in accordance with International law.
Did Denmark &Netherlands succeed in proving that ,that rule was in accordance with
International Law. They failed to prove that the rule was in accordance with I.L & SO the I.C.J
said look you cannot claim that, this rule is binding on Germany. They could not claim

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that ,that rule was opposable to Germany. You have Denmark and Netherlands ,they take
Federal Republic of Germany to the I.C.J on the delimitation of their continental shelf and are
seeking to rely on Article 6 of 1958 Geneva Convention on the continental shelf & Germany
says look you cannot rely on Article 6 of 1958 Geneva Convention on the continental shelf to
justify your claims against us because we are not party to that convention. So in other words
Germany, is claiming not to be bound by the Convention as it is not a party to the convention.
But Denmark & Netherlands, are saying alright, "okay," you can claim as it were freedom on
that basis "no way" ,that rule under Article 6 of the convention that we are relying on is
a rule that is also in our municipal law by virtual of it being a rule of customary International
law & we are going to invoke it to oppose your claim that you are not bound or as it were, you
are free from the provisions of Article 6. In other words we are now not going to rely on
provisions of Article 6,because we appreciate you are not party to the 1958 convention but
that Article 6 codifies a pre-existing rule of customary I.L & it is that rule of customary
I.L that we are going to invoke to oppose your claim that you are not bound.
The North Sea Continental Shelf Cases
In the North sea continental shelf cases, Denmark and the Netherlands sought to rely
on the alleged fact that the equidistance principle had become to be regarded as a rule
of customary international law, so that it could be obligatory forGermany in that way,
even though Article 6 of the 1958 GenevaConvention on the Continental Shelfwas not
as such opposable to Germany. The court held that the equidistance principle had not
developed into a rule of customary international law because there was no evidence of
opinion juris and that as such it would not be invoked against Germany in order to
defeat its claim that it was not bound by the provisions of the convention.
The court concluded that the parties were under no obligation to apply either the 1958
convention which was not opposable to Germany or the equidistance method as
amandatory rule of customary law because it was not.
(In other words what we are seeing here is a situation wherea rule of Municipal Law which
is compatible with I.L can or maybe applied before an International Tribunal.
Netherlands and Denmark are saying look "this is a rule in our own municipal law/we have it in
our own municipal law but it is also a rule of Customary I.L and we are going to invoke it
against you before an International tribunal. Remember we had already seen before an

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International Tribunal I.L is supreme &n hence you cannot rely on municipal law, but here
they are relying on municipal law alleging that, that municipal law is not only part of I.L, but is
consistent with I.L.)
Further Explanation of The Concept of Opposability
Denmark & Netherlands are saying before I.C.J that they want the court to apply the principle
laid down under Article 6 of the 1958 Geneva convention on the continental shelf which is the
equidistant principle with respect to drawing of the boundary line among as three. This
principle provides that the three countries delimit or draw the boundary line in such a way that
each one of them ends up getting the same size of the common continental shelf. Germany
refuses for I.C.J to apply the equidistant principle as incorporated under Article 6 of the
convention as they were not party to the convention hence provisions of the convention could
not be used against it. This is similar to the law of contract which establishes that one cannot
apply provisions of a contract to a party who is not privy to the contract & hence this is why
Germany is saying that the principle of Equidistant in the convention could not be applied
against it as it was not privy to the said Covenant. In addressing Germany's claim Netherlands
& Denmark turned around and said "Hey, but you know what, that principle of Equidistant is
not only a principle of I.L, but it is a principle that applies in our municipal law by virtue of it
being a rule of Customary I.L. so we are going to apply it to you, by virtue of it being a rule
of Customary I.L which also applies to our municipal law .Remember we saw that rules of
customary I.L are automatically incorporated into municipal law less they are contrary to a clear
provision of an Act of parliament or to a decision of the highest judicial Organ in the land.
Here is a situation where the Netherlands and Denmark are saying this LOOK this particular
principle is not only a principle of I.L, but it is also a principle of municipal law, by virtue of it
being a rule of customary I.L which applies in any event by virtue of incorporation in our
municipal law systems.
So we are now going to raise that to oppose the claim that you are not bound by that principle,&
this is where the issue of opposability comes in or in other words Netherlands & Denmark are
raising a principle of I.L that has become part of their municipal law to oppose Germany's
claim that it is not bound by the Equidistant principle. The I.C.J tells both Denmark &
Netherlands that the burden is on them to prove that, Indeed that principle is a rule of
customary I.L. which then as it were throws the burden of prove on Denmark & Netherlands

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because they were the ones claiming that the equidistant principle is in any event a rule of
customary I.L . They failed to prove that it was a rule of customary I.L and they failed to prove
those elements that we established that is :opinion juris ,uniformity ,Generality, consistency e.t.c
.In the light of their failure, to prove that equidistant principle was a rule of customary I.L, the
I.C.J told them sorry, we are not going to apply the equidistant principle either as rule of I.L, or
conventional I.L because Germany is not a party to the Convention & nor are we going to apply
it as a rule of Customary I.L binding Germany. Why? Because you have failed(Denmark &
Netherlands) to prove INDEED, that it is a rule of Customary I.L.
 The Country(opposing country) must prove that, that rule or Concept it relying on to
oppose the claim of the other exist: Either as a rule of Customary I.L hence binding
that states generally or as a rule of Municipal law which is common to both of
the countries(country being opposed & Country opposing) and in this case to
Netherlands ,Denmark & Germany and therefore binding in that respect.
 Denmark & Netherlands not only had they to show it was a rule of their municipal law
but they must also show that it was a rule that is consistent with I.L.
 If Denmark & Netherlands had proven that it was(Principle Of Equidistant)a rule of
Customary I.L binding on states generally they would have succeeded in opposing
Germany also ,If Denmark & Netherlands had proven that it was(Principle Of
Equidistant) a rule of Municipal law in all the 3 countries involved they would have
succeeded before the I.C.J.
 Germany intention to ratify the convention held no water as that was just an intention.
Unless & until Germany ratified the convention it could not be bound by the its
provisions.
 For example in the criminal offence of treason one is not found guilty of the offence until
one has manifested an overt Act hence one can imagine the overthrawal of the President
or even intend but unless & until one has manifested it through an overt Act one is not
guilty of such offence . One can & hence their intention to ratify could not stand as
showing that they were of the equidistant principle contained in the convention they
shown an interest to ratify and did not ratify even if they did , ratify it Germany could
have done so and exclude themselves from being bound by Article 6 of the said
convention which provided for the Principle Of Equidistant.

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  Germany were refusing the equidistant principle to be applied because, on a concave
coastline they stand to lose because they were on the middle.Hence they wanted the
proportionality principle whereby various continental shelf are going to be
apportioned in proportion to the length of their coastline.
Another case dealing with Concept of opposability.:
Fisheries Jurisdiction Case (Merit ) between Federal Republic of Germany vs. Iceland
1974 I.C.J Rep. 175( Germany was protesting a unilateral decision by Iceland to
extend its Fisheries Jurisdiction)
In the fisheries jurisdiction case the Federal Republic of Germany sought to have the
International Court of Justice declare that the unilateral extension by Iceland of its
exclusive fisheries jurisdiction from 12 nautical miles to 50nautical miles had no basis in
international law and therefore not to be opposable to the Federal Germany and to its
fishing vessels.
Iceland had justified its action, on an alleged rule of customary international law that
gave a coastal state particularly dependent on fishing for its economical livelihood,
preferential rights of access to the high seas fishery resources in the waters adjacent to
its coast.
The court held that the unilateral extension based on Iceland domestic laws was not
opposable to the federal republic of Germany and that in consequence the government
of Iceland was not entitled to unilaterally exclude fishing vessels of the federal republic
of Germany from the areas agreed upon earlier on.
However, merely because the rule of domestic law is held to be non-opposable, it
does not affect the validity of the rule in the domestic legal regime.
The reason is that international law provides no procedure for invalidation within the
domestic framework of a rule of municipal law.
If the position be that the rule of domestic law, held to be non-opposable is itself invalid
by reference to the provisions of domestic constitutional law, then the rule is not
opposable also to states other than the claimant state unless such other states have
expressly waived the constitutional invalidity of the rule.
I.C.J Advisory opinion: Legal consequences of states of the continued presence of
South Africa in South Africa.(1971 I.C.J Report pg.16)

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Questions
The relationship between IL and ML
 Kenya’s State practice regarding the relation between IL and ML
 The UK state practice regarding relationship between IL and ML
 Does Article 2(6) of Kenya’s constitution turn Kenya into a monist state?
 Whether Palestinian authority is international law person?
ENDZ OF LESSON SIX!!!!!
CHECK : ANGLO-NOWERGIAN FISHERIES CASE

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 LESSON SEVEN
C. INTERNATIONAL PERSONALITY.
Introduction.
International Personality refers to the capacity to be a bearer of rights and duties under
Public International Law. Accordingly International legal persons as bearer of rights &
duties under International law must satisfy 4 essential elements:
To be an international legal person the entity must satisfy 4 basic elements.
1) The entitymust have duties and hence incur responsibilities for any behaviour which
is at variance with that prescribed by the international law system.
2) The entity must be capable of claiming the benefits of rights conferred by the rules
of International Law.They must have the ability to make claims to directly establish
rights granted under International Law. This is more than being a mere beneficiary
of rights because a considerable number of rules may serve the interests of groups
of individuals or entities who do not have a legal claim to the benefits conferred by
the particular rules. E.g.In the law of trusts the one who has the benefit conferred by
the trust is the beneficiary but has no legal capacity to enforce that trust. In the Law
of contracts the infants have rights but do not have the capacity to enforce the
contracts.(capacity to make claims in respect of breaches of I.L)
3) The persons/entity must possess the capacity to enter into contractual or other
legal relations with other legal persons recognized by that particular system of
law/other legal system of law. The entity must have the capacity to make binding
treaties i.e. The entity has the capacity, for example to conclude bilateral and multilateral
treaties with other subjects of I.L. This illustrates capacity to enter into contracts with other
legal persons recognized by the other particular system of law. When China Wu Yi for
Example signs a contract with the Govt. of Kenya ,it does not mean it is an international
legal person with capacity to conclude a treaty with the Govt. of Kenya. Whatever agreement
it enters into with the Kenyan Govt. is not a treaty it is something else other than a treaty.

4) The entity/person must possess the capacity to enjoy some or all of the privileges
and immunities from the jurisdiction of the municipal courts or national courts of
statesthese being an attribute of an international legal person as distinct from one

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 governed by Municipal Law. If this entity is an International legal person it must be
capable of enjoying immunity and privileges from the jurisdiction Kenya judicial system. If
it lacks then it may not be an International legal person.
Under International Law, entities which have International legal rights and duties, the
capacity to defend or enforce these rights, capacity to enter into binding
Internationallegal agreements and to conclude legal treaties and the capacity to enjoy
privileges and immunities from municipal jurisdiction are described as international
legal persons and constitute the subjects of International Law.
The traditional view is that the only subjects of International Law are states. States
alone have unlimited International law personality. Other entities enjoy only limited
or relative International law personality. This is because contemporary International
Law has recognized the existence independently of a variety of International
institutions and in a number of cases has imposed obligations on and granted rights to
individuals so that both International Organizations and other non-state entities as well
as individuals enjoy a degree of International personality especially for functional
purposes.
Indeed, the International Court of Justice has recognized the diversity of International
law personality in the Reparations case by stating that, “the subjects of law in any
legal system are not necessarily identical in their nature or in the extent of their
rights.”
In its advisory opinion, in the Reparations Case, the I.C.J stated that, “In the opinion of
the court the United Nations Organization was intended to exercise and enjoy ---
functions and rights which can only be explained on the basis of the possession of a
large measure of International personality and the capacity to operate upon an
International claim. It is at present the supreme type of International organization and
it could not carry out the intentions of its founders if it was devoid of international
personality.
It must be acknowledged that its members, by entrusting certain functions to it, with
the attendant duties and responsibility, have clothed it with the competence required
to enable those functions to be effectively discharged. Accordingly, --- the organization
is an International person. That is not the same thing as saying that it is a state --- or

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that its legal personality and rights and duties are the same as those of a state. ---
what it does mean is that it is a subject of International Law and capable of
possessing International rights and duties, and that it has capacity to maintain its
rights by bringing International claims.”{ Lecturer's explanation: I.C.J is acknowledging
States hare International legal persons. It also says that states are not the only International
Law persons. Over & above states there are entities that are I.L Persons. They enjoy certain
degree of International legal personality that is why we had the statement "the subjects of law
in any legal system are not necessarily identical in their nature or in the extent of their
rights". What we are saying is that not all I.L persons have identical rights or similar rights.
The Rights differ depending on which entity we are dealing with. We have seen & that is what
the I.C.J is saying here the U.N as an International Organization possesses what is called
Functional International Law Personality, because for the U.N to function, for the U.N to
discharge its duties that the member states confers upon it, it must have some powers or
competence, it must have some capability to act at international level to discharge those
functions . So the U.N has what is called Functional International law personality. As we
move on we shall establish how that Functional International law personality as
international organization differs from the personality of states.
ESTABLISHED INTERNATIONAL LEGAL PERSONS.(this are entities who jurists
claim to an extent that these are bearers of I.L right or this are bearersI.L obligation)
a) Independent Sovereign States(Subject of International Law)
Independent Sovereign states remain the primary subjects ofinternational law because
they occupy the central position the International legal border.(Remember the Peace of
Westphalia & the Article by Leo Gross "The peace of Westphalia".States are international
legal persons par excellence, provided the conditions or legal criteria (there are certain
criteria must be met by an entity to qualify as a state) for statehood are met, the
international legal personality of states cannot be doubted.
b) Political Settlements(Subjects of I.L)
Political Settlements both in bilateral and multilateral treaties have produced political
entities such as Free City of Danzig(Danzig is in Poland) createdafter World war I, & the
Free City Of Trieste (Trieste is in Italy) created after World war II, possessing a certain

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autonomy, fixed territory, population and a degree of legal capacity at the International
claim.
For instance under the 1919 Treaty of Versailles ( the one that formally ended the 1st
World war) that created the Free City of Danzig,the Free City was organized as a state,
with its own Constitution, flag and currency and was entitled to grant citizenship to the
inhabitants of Danzig.( That means it also had its own Nationality law).
From the point of view of International Law, the Free City was almost like an
independent state that was not subordinate to any other authority (Case : The treatment
of Polish Nationals In Danzig).{Lecturer's Explanation: Although Free City of Danzig was not
a state it had all the legal rights and duties under I.L e.g. The right to have constitution, flag
nationality & many people were given Nationality. Also we had the Free city of Trieste is in
Italy after second world war as a political entity but created under the second World war
settlement procedure & it an International law person. In the 1940's there were attempts to
create the free city of Jerusalem so that it would have its own Constitution, flag, nationality law
that as it were brought together the Arabs & Jewish people but that attempt failed because of lack
of support from U.S & U.K that were & are still home of Israel than Israel itself.
ThePermanent Court of International Justice recognized that the Free City of Danzig
had international personality and that the capacity to enter into relationships with
sovereign states. The free city of Trieste was also similarly created.
c) Condominium(Subject of International Law)
Condominia-more than one.
Condominium-One.
Condominium are International Legal Personscreated by agreement between two
states under-which they exercise joint sovereignty over certain territory and its
inhabitants.
For instance, the present day Vanuatu (Previously called New Hebrides) in the South
Pacific was a condominium jointly administered by France and Great Britain exercised
sovereignty based on the Treaty of October 20, 1906 and the Protocol of August 6, 1914
until it became independent in 1980.
A further condominium of historical importance is the relationship between Great
Britain and Egypt with the regard to the Sudan. The basis for the arrangement was the

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Agreement of January 19th 1899. By the Treaty of February 12th 1953 between Great Britain
and Egypt the Condominium was lifted to the extent that it was left to the Sudan to
choose between full independence and further association with Egypt. The
condominiumis an association of states in the widest sense. The territory under
condominium does not itself have international law personality of its own. The existence of
a condominium rests upon a title in International Law pursuant to which a number of
states are vested with sovereignty over the territory. The legal title to the condominium
binds the relevant states like Egypt and Great Britain in such a way that their
sovereignty over the territory appears as a common sovereignty. The decisive element
for the condominium is the common territorial sovereignty which distinguishes it from
other associations of states formed to exploitareas in common.
{Lecturer's Explanation: There is a condominium currently that exist under I.L called Gulf of
Fonseca in Central America.It is a condominium shared by 3 Liberian states; Honduras,
Nicaragua & El Salvador. The I.C.J ruled that the 3 states exercise condominium over the
waters of that Gulf. Reason being it's ansharable/no way each of them can have a separate
element of the Gulf because of its size. This happened after Honduras & El Salvador went to the
I.C.J to be told how they would draw the dividing line between our various jurisdictions within
the Gulf.
When the case was still pending before the I.C.J the Nicaragua applied to be enjoined by stating
that whichever judgment the court gave they would be affected as it also had a claim to the
waters of the Gulf. The I.C.J ruled that it was a condominium.} Nigeria has more than 30 federal
units and they do not have treaty making capacity & I.L recognizes Nigeria as one legal person
also U.S.A with federal states also Tanzania which has Pemba& Zanzibar.
Nigeria is the only Federal state in Africa. Look at the Book: Consolidated Treaty Series by
Live Parry. Contains Treaties. International law applies in regard to Condominium or is
governed by I.L not municipal law of any of the state e.g. Gulf of Fonseca governed by
law of the sea. I.L does not support Secession but if it succeeds and a new state is formed the
International community has no choice but to recognize & accept it as such. Example: Eritrea
fought Ethiopia to become a state and was not given support by anybody even Africa but when it
succeeded it was accepted & recognized as a state. Also South Sudan.

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BELLIGERENTS /INSURGENTS. E.g. Lord resistance Army in Uganda led by Joseph Kony.
(They are International Law Subjects. Subjects of International Law)
Quite often political and military dissidence(opposing a given political system) within a
sovereign state results in large scale armed conflict with rebels succeeding in controlling
a substantial part of the territory and setting up an operational structure capable of
effectively wielding authority over the individuals living there. When this happens the
insurrectional (the act or an instance of open revolt against civil authority or a constituted
Govt.) party normally claims some measure of recognition as an international subject.
States have traditionally been hostile to belligerents in their territory on the grounds
that they do not like the status quo to be disrupted by people who seek to topple the
lawful government and possibly change the whole fabric of the state.
Consequently they prefer to treat belligerency as a domestic occurrence and the rebels
as a group of common criminals.
The International community has also been reluctant to grant civil upheavals in states
International legal standing in order to avoid encouraging secessionist and
irredentisttendencies that may lead to International Anarchy. (Shifta movement)
{Lecturer's Explanation:State Practice does not encourage secessionist movements or
movements that lead to the breaking away the dismemberment of a political unity of a sovereign
state. International community does not encourage secessionist movement(breaking away from a
unitary state and as it were establishing your own. E.g Biafra war where Biafra was as it were
seeking to secede from the bigger Nigeria and create its own state. In fact there were some states
that recognized Biafra secede.
Nyerere was one of them who said look Tanzania is not going to sit back and watch as blood is
being spilt over these, give them their statehood, leave them alone. I think Kaunda was another
one in Zambia , & then there was Egypt & I think Senegal that had recognized Biafra. The
Federal Government of Nigeria said no way ,you guys are interfering with our internal affairs.
What are you doing, this is a secessionist movement that we are not going to allow here. In fact
they reacted so bad that it severed the diplomatic relations with those countries.
Irredentist involves grabbing the territory of another and building a greater territory of your
own. Remember what Somalia used to do when they wanted to as it were not simply to bring the

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Somali speaking people back to Somalia but extend their territory to where they were. That was
the cause of shifta war in Kenya and the Ogaden war in Ethiopia.}
N/B (An irredentist tendency is what African states refused. African states are not
international states it’s a conglomeration/mass (Berlin 1884 -85) (The Maasai have no
idea there is a border there is no understanding of the illegality of crossing the border)
Irredentist is where there is a nation that seeks a greater territory borders outside its present by
encompassing other communities’ e.g. Somalia secessionist(breaking away from the unitary state
e.g Biafra war where Biafra wanted to break away from Nigeria &Some countries e.g Tanzania
Nyerere recognized it & it severed diplomatic relations between the two countries as Nigeria
said it was Internal affair & no one should interfere ) and irredentist(Grabbing a territory of
another )
However, when the civil upheavals reach such proportions that
1) The rebels occupy and have effective control of a substantial portion of national
territory
2) The civil commotion has reached such intensity and duration that their exists an
armed conflict of a general character .
3) The rebels conduct the hostilities in accordance with the laws and usages of war
(“Jus in Bello”) through organized groups acting under a responsible authority then
there is present the necessary basis for recognition of the emergence of a subject of
International Law to which belligerent rights may be accorded.(The 3 at least must be
there to qualify to be a belligerents ){ Lecturer's Explanation: When we talk of laws & usages
of war they are Contained in the 1949 Geneva Convention On The Laws Of War & there are 2
protocols that were adopted in 1977. Protocol one internationalizes civil war so that the parties
to the civil war must comply with the 1949 Geneva Convention On The Laws Of War .E.g.
When an enemy soldier is injured one should not shoot to kill them you help that enemy soldier
to get medical attention. When that enemy soldier surrenders you don't arrest that soldier & try
him you hold that soldier as the prisoner of war& when hostilities are over you exchange the
prisoners of war after signing a peace agreement. If you are fighting in the sea and the enemy
ship is sinking if you can without risking yourselves safe them. In other words 1949 Geneva
Convention On The Laws Of War are meant to give armed conflict a humane face. This is
because when fighting we dehumanize the enemy soldier that he must be killed but not at all

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times that he must be killed. You don't follow the enemy soldier when on the ground and empty
your A.K 47 on him while he is on the ground. Guerilla fighters do not qualify to be
belligerents because they are not organized and they are hit & run kind of thing.Prescriptive
jurisdiction: the right to make laws for one own states jurisdictionRef: to Ethiopia in early 90s
when Eritrea was receding, The Arab springIt is for states i.e. both the state against which the
civil strife breaks out and 3rd states to appraise the situation by granting or withholding the
recognition of belligerency whether the 3 requirements have been fulfilled. Boko Haram has not
fulfilled all the conditions to be a Belligerent e.g Jus in Bello}
It is for the states both the state against which the civil strife breaks out and 3rd states to
appraise by granting or withholding recognition of belligerency whether this
requirements have been fulfilled.If the states against which the belligerents are fighting
grants them the recognition of belligerency, that is, admits that the conflict underway is
an international armed conflict or if 3rd states so recognizes it, then the rebels are
automatically upgraded to International law subjects entitled to all the rights and
obligations deriving from the laws and usages of war(Jus in Bello).
In other words recognition of belligerency internationalizes the civil strike (i.e. The state
which belligerency breaks out must throw in the towel e.g. secession of Eritrea from Ethiopia.
Laws of war is a branch of international law. This is contained in 4 conventions adopted in
Geneva in 1999; For Example if one is a soldier fighting with an enemy soldier who surrenders
then one has to rescue him. Soldiers at sea, u don’t leave the enemy to drown u have to rescue
them. Bombings are not done on civilians but only on military.)
Belligerence posses a limited form of international personality which is transient in
character (temporary as the government in power may get reinforcement and quell them, can
secede, can install themselves into power). This is because they may be quelled by the
government in power and disappear( e.g. Like what happened in Biafra) or they may seize
power and install themselves in the place of the government{Lecturer's Explanation: It
islike what happened in 1997 when Laurent Kabilawas rolling into Kinshasa and getting
Mobutu Sese Seko Nkuku Ngbendu Wa Za Banga out of Kinshasa and he says Democratic
Republic of Congo, What democracy was that? So they may seize power & install themselves in
place of Govt.} or they may secede (withdraw) and join another state or become a new
international law subject.{Like what happened in 1993 to the Eriteria and it acquired rights

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and was no longer a belligerent,2012 with South Sudan where S.P.L.A helped south Sudan
secede from the larger Sudan and when they become New I.L subjects you no longer treat them
as belligerents.Okay! }Hence, they cannot claim rights contingent upon the permanent
character of international law subjects such as seeding the territory they are in de facto
control of to another international law subject.
{Lecturer's Explanation: Until rebels in Ethiopia formed a new state called Eritrea they did not
have the capacity to transfer the territory to any other international personality and were only in
de facto control. Look at chapter 6,7,8 of the U.N charter to establish who becomes responsible for
damages/injury caused during enforcement of an action taken pursuant to authorization of the
U.N Security council)(Dissertation in Library)Who becomes responsible for atrocities committed
by NATO under authorization by the U.N security council. Under the charter use of force is
only authorized under two circumstances: Self Defense,& Enforcement action authorized by
U.N Security Council}

d) Individuals(They hold a lopsided position)

There is no general consensus regarding the International Legal personality of
individuals although there is general consensus that individuals are the proper concern
of International Law.(Jurists are unanimous in their opinion that individuals are the proper
concern of International Law.)
The lack of consensus is due inter-alia to the contention that individuals do not have the
legal status of International Law subjects because they remain under the exclusive
control of their states of nationality for all international law purposes.{Many jurists
however contend that individuals may not be regarded as having the legal status of international
law persons because in their view,individuals are still under the conclusive control of the
states}.Indeed, as a general rule individuals lack standing(locus standi) to assert
violations of International Law, absent intervention by their states of nationality.
Whereas some jurists hold that individuals are proper subjects of international law.
Others while admitting that individuals are subjects of International Law qualify this by
saying that such subjectivity is not possible without the intervention of the state of
which the individual is a national. On the other hand other writers/jurists have argued

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 that the fact that because the individual as a beneficiary of the international legal rights
cannot have them enforced at his instance and in his own name means that the
individual is only an object of International Law.
The individual lacks the procedural capacity to espouse his or her claims before
international tribunals and such claims can be entertained only at the instance of the
stateof which the individual is a national or in certain circumstances by the
international institutions of which he is an official or servant. ( Referred to -Reparations
case – Count Bernadotte).{Lecturer's Explanation: What this means or what jurists are saying
is that an individual cannot in their own name & at their own instance have the I.C.J
pronouncing certain legal situations in their favour. One cannot go to the I.C.J & say I.C.J look,
I have been wronged by this and this Govt. in violation of my International legal Rights and
hence I want a remedy from the I.C.J.. One lacks a procedural capacity to do that. One can only
do that through the instrumentality of the state of your nationality in your case Kenya.
For example if you were to have some interests in Uganda and the Govt. of Uganda injures your
interest, you cannot go beyond the supreme court of Uganda, without the intervention of the
Govt. of Kenya. You cannot do that why? if you go beyond the supreme court of Uganda you
shall be going into International frame and you cannot get into International frame without the
intervention of your state of nationality Kenya. Hence to this extent jurists are saying "NO"
you cannot say you are an Subject of I.L or an International law personality, you are only an
object of International Law /one can only be an Object of I.L}
Whichever view one holds, it is worth noting that contemporary International Law has
directly imposed obligations on individuals such that states have lost the exclusive
monopoly over individuals.(Whichever view is entertained, it is apparent that contemporary
International Law has directly enforced obligations on individuals such that states have lost
their exclusive control over individuals.)
 For instance, in the area of armed conflict, rules of both Customary International Law
and Conventional Law provide that Individuals who violate/break the international
rules of warfare( Jus in Bello) will be criminally liable for such breaches/ violation
regardless of their official positions as state agents.{ Lecturer's Explanation E.g. If you are
the commander K.D.F and you don'tcomply with the rules of warfare of Geneva Convention
will be so held personally liable for violation of those rules.}

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 Individuals are also criminally liable for committing crimes against humanity, genocide,
aggression, terrorism and torture both in their capacity as state officials as well as in
their private capacity.
As the International Military Tribunal at Nuremberg stated in its judgment in 1947,
“crimes against International law are committed by men (and I dare and women) not
by abstract entities and only by punishing individuals who commit such crimes can the
provisions of international law be enforced.”
{Lecturer's Explanation: I want you to note this which is very important: Here we are talking of
international crimes and you may be aware that the International military Tribunal was the first
of its Kind, to try individuals that were alleged to have committed war crimes and crimes
against humanity after World War II. Indeed as we are going to see it was a tribunal that was
set up by the victors of the war.
I want to explain this so that you don't make a mistake: Here we are talking of International
crimes& as we have said when it comes to crimes, it is individuals who have commit the crimes,
or in now this present day & Age, it is also corporations who commit crimes. There is what is
called white collar crimes many of the white collar crimes are committed by corporations.
Corporations are persons(White collar crimes refers to financially motivated nonviolent crimes
committed by business and Govt. professionals within criminology. It is synonymous with the
full range of frauds committed by business and Govt. professionals). This is what we are talking
about, it is individuals who commit International crimes and when they commit International
crimes they must be held Individually accountable. That is the only way we are going to enforce
the provisions of International Criminal Law. I want you to get this distinction very clearly.
Here the tribunal is talking about the provisions of International criminal law and as you may
be aware or as we said International military Tribunal at Nuremberg was the first of its Kind. It
was an adhoc Tribunal established to try the perpetrators of war crimes & crimes against
humanity after second World War.
The second tribunal was the Tokyo Tribunal that was established in the U.S specifically to try
Japanese Soldiers who had committed war crimes during the second World War. The moment
those two Tribunals as it were finished their functions, they folded up and we did not have any
other International criminal tribunal until the early 90's when we had The International
Criminal Tribunal for former Yugoslavia 1993,& The International Criminal Tribunal of

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Rwanda 1994.The International Criminal Tribunal for former Yugoslavia has folded up/it's
gone. It was an adhoc tribunal. That for Rwanda is in the process of winding up at Arusha and I
think at the end of this year it should have wound up completely. And now as you are aware we
have The Permanent International Criminal Court established by the 1998 Rome statute. The
Permanent International Criminal Court was established by the International community after
the International Community had sealed, so to speak, the failures of the adhoc Tribunals. In
particular after the International Military Tribunal at Nuremberg ,& the Tokyo Tribunal,
International community in 1948 adopted the Genocide convention. Under that convention it
was the authorities of those countries where Genocide was being committed, that had criminal
jurisdiction over the perpetrators of Genocide.
So from 1948 when the Convention was adopted not a single person that was arrested and
charged with Genocide until Rwanda Tribunal in 1997 found Akayesu guilty of Genocide.
That is why for Example Idi Amin Dada got away with committing Genocide against the Asians
in Uganda. This was because nobody could arrest Idi Amin Dada & charge him with Genocide.
Here we are talking strictly about International Criminal law.
When it comes to International Criminal Law it is the Individual regardless of their
status, regardless of their official position. That is why you have heard or seen or read
about the I.C.C issuing warrant of arrest against Al-Bashir. I want you to get this ,so that
you don't say that under International Law Individuals are International law persons or
International legal persons. There is a distinction that we are making here; It is only with respect
to International Criminal law that International community has said "No" we must have them
personally liable, for the atrocities they commit when they are out there either in the form of
crimes against humanity like Genocides like what was happening in Rwanda & before that in
Uganda by Idi Amin ,Terrorism and torture.
So I want you to look and have that very clear, because should I ask a question in the Exam , and
you tell me "Yes" Individuals are International law persons and you stop with that without
qualifying then you may not get a full mark.}
A summary of: International Military Tribunal at Nuremberg.
On August 8, 1946, the Governments of France, the U.K, the U.S.A and the Soviet
Union"(U.S.S.R)(Russia)(victors of World War II) acting in the interests of all the United
Nations and by their representatives duly authorized thereto", signed in London an

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 Agreement for the establishment of an International Military Tribunal. The tribunal was
for the trial and punishment of crimes for which there was individual responsibility
that is:
1) Crimes against Peace, namely, planning, preparation, initiation or waging of a war of
aggression or a war in violation of international treaties, agreements or assurances, or
participation in a common plan or conspiracy of the accomplishment of any of these.
2) War crimes, namely, violations of customs of war, such as murder, ill-treatment or
torture of prisoners of war, deportation of civilian population of or in occupied
territory.

3) Crimes against humanity, namely , murder, extermination, enslavement, deportation

and other inhumane acts committed against any civilian population before or during
the war or persecution on political, racial or religious grounds in execution of or in
connection with any crime within the jurisdiction of the tribunal whether or not in
violation of the domestic law of the country where perpetrated.
The tribunal was composed of 4 members, one appointed by each of the signatory
governments. The tribunal established the guilt of the individuals concerned thereby
providing a basis for international criminality of individuals.The provisions of the
Nuremberg Charter and the judgment of the tribunal are now regarded as part of
international law since the U.N General Assembly in 1946 vide (refer to)Resolution
95(1) affirmed the principles of the Charter and the decision of the tribunal.
{Lecturer's Explanation: Question: Before 1946 August, International community did not know
of a crime called War crime ,International Community did not know of anything called crime
against humanity. Alright.
Here is a situation where you have victors of the second World War, France ,U.S.A,
U.K,U.S.S.R. getting together, concluding an agreement, an agreement that establishes a
Tribunal, an agreement that establishes crimes under I.L and then not only establishes a tribunal
with the jurisdiction to try those crimes but also a Tribunal composed of representatives of the
victor states. What would you say about the legitimacy of the finding of the tribunal? The
reason am asking that is this: If you have read, you must have seen some writers who have
argued, that the law established by the International Military Tribunal is not good law,because
this is a case where you have the victors punishing the vanquished (defeated thoroughly in a
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 war) of the second World War. What else did you expect. This is where you have the victors
defining the crime, victors establishing a tribunal, the victors being the judges in the tribunal,
and the victors finding the vanquished guilty or having committed those crimes. Who for
example tried and found U.S responsible for the bombing Hiroshima Nagasaki during the same
Second World War? and yet the Tokyo Tribunal was trying the Japanese soldiers, not the U.S
soldiers who dropped the bomb in Hiroshima Nagasaki? Supposed the question I asked you the
Nuremberg Tribunal established bad law, true or false ?Explain your answer.
This is from the principles of criminal law learned in first year. There is a principle of criminal
law that you refer to? }
 Another category of individuals who are subjects of InternationalLaw are Pirates.
Article 100 of the 1992 UN Convention of the Law of the Sea provides that all states
shall cooperate to the fullest extent in the repression of piracy on the high seas and on any
other place outside the jurisdiction of any state.
Under Article 105 of the Convention, provides thatany state may seize a pirate ship or
aircraft or a ship taken by piracy and under the control of pirates and arrest the persons and
cease the property onboard.
{Lecturer's Explanation; Piracy is an international crime, so if there is any pirate, they will be
arrested of the nationality of the ship they are operating. Piracy takes place in the high seas. It
doesn't take place in the Maritime Zone.}
The courts of the states which carried out the seizure may decide upon the penalties to
be imposed and may also determine the action to be taken on regard to the ships,
aircraft or person subject to the rights of the 3rd parties acting in good faith.
 A parallel development of the International legal status of individuals is the
conferment by treaty provisions of rights upon individuals against the state of which
they are nationals. For instance establishment of human rights within the UN system
has removed the entire concept from the domestic jurisdiction of states to the
international plain thereby affording international protection to individuals whose
rights may be infringed by their states. {Lecturer's Explanation :Kenya cannot say the way it
treats its nationals is a matter of domestic jurisdiction it is not a concern of International
community. It is certainly a concern of International Community because Kenya is a party to
the 1956 International Covenance of human rights, Kenya is a party to various others

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 International law field treaties on human rights. What we are saying is thathas elevated the
status of individuals when it come to Human rights over and above the domestic jurisdiction
and placed them as it were on International frame. The International community is going to be
concerned about how Kenya treats its own Nationals. I think you have read or you have heard of
special Rapporteurs of the U.N coming to Kenya.
Not too long ago there was this ,Professor of I.L called Philip Alston who came here as a Special
Rapporteur on Extra judicial executions and when he presented his report in Geneva to the
Council Of Human Rights , there was a hullabaloo raised by the Kenyan Govt. But there it was,
International community was concerned the way Kenyans are treating}.
For instance the 1950 European Convention of Human Rights after proclaiming the
rights and freedom to which every individual is entitled, sets up the European
Commission of Human rights and the European Court of Human Rights respectively in
order to ensure observance of the engagements undertaken by the state parties of the
convention.
Similarly The 1981 African Charter on HumanandPeoples’ Rights and the 1998 Protocol
there to established the African Commission and the African Courts of Human and
Peoples’ rights as the Guardians of the Charter.
Limitations of the Instruments Granting Individuals Locus Standi Before International
Tribunals(Granting individuals International Law Personality) :
However the problem with these and similar International Law Instruments, is that:
 The substantive rights they lay down may only be exercised by individuals within the
domestic legal system of each party of the states.(That means if those rights have been
transformed into municipal law then you can only espouse those rights before a municipal court
that is the domestic people system) Besides the individuals do not have direct procedural
rights to petition international bodies to seek redress in the event of violation of their
rights. A notable exception however is the European convention as revised in 1998 by
Protocol 2 of 1994. Prior to the entry into force of the protocol, individuals would access
the European Courts of Human rights only through the commission. (in other words they
did not have direct access toEuropean Courts of Human rights they could only do so through
the European commission who would take up their cases)The protocol abolished the

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 commission so that there is no longer an administrative barrier between the individual
and the court.
 Another limitation is that the rights in question are only granted by treaties with the
respect to certain well defined matters such as labour relations and refugee status and
only if states that are parties to these treaties accept the obligations towards individuals.
{Lecturer's Explanation: What we are saying is that those rights and freedoms conferred on
individuals are conferred by treaty law and because they are conferred by treaty law, it is only
states that have ratified those treaties, that can be held accountable for violating those rights.
States that have not ratified or are not party to those treaties will get away with it. This is
because as you know, you cannot as it were, apply the provisions of a treaty to which a state is
not party against that state. Indeed the 1996 International Covenant On Civil & Political
Rights has an optional protocol that Kenya has refused to ratify. The reason that Kenya has
refused to ratify is that, that optional protocol grants the individual i.e. 'You & I' the right to
appear before the U.N Council on human rights if they are meeting in Geneva or New York &
say 'look' what Kenya is saying is not true, am a victim of this & that and that.....Kenya refused
to ratify that optional protocol. Kenya has not ratified.
So the only way Kenya is saying about status of human rights in Country can be challenged is
only either through what I was earlier telling you about special rapporteurs orN.G.O's like
Amnesty International or Human rights watch which can appear & say "no, no, no" what
Kenya is telling you about is not true as we have been there and seen that is not the position.}
In essence, in Contemporary International Law, individuals are subjects of
international Law. {Lecturer's Caution "I hope you don't make a mistake on subjects of I.L &
International Law persons}. Those two are distinct or are different} They have a few
obligations deriving from customary international law.
In addition, they have procedural rights only towards states that have concluded
treaties recently conferring such rights.
Therefore, the international legal status of individuals is unique because they have a
lopsided/irregular position with the International community. As far as their
obligations are concerned, individuals are associated with other members of the
international community.

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 In contrast, they do not posses rights in relation to all members of that community. In
order to differentiate the position of the individuals from that of states, it may be stated
that while states have International legal/law personality proper, individuals possess a
limited locus standi in International Law.
{Lecturer's Questions: What is the position of individuals ?Are you subjects of international
law or International law persons? Or are individuals objects of I.L? Because some jurists argue
individuals are objects of I.L. To them is an object in the sense that an individual is a beneficiary
of certain rights under I.L. The Individual carries certain obligation under I.L., but the
individual cannot espouse those rights under I.L in the absence of his or her state of nationality.
You are aware, aren't you and I think I told you that the individual does not have the Locus
Standi before the I.C.J, it's only states. So if this friend of mine from the land of Museveni, is
wronged by Kenya, the best he can do is go back to the land of Museveni and ask Museveni's
Govt. to take up his claim against Kenya at International Law . He cannot do so as a person.
So is he an object?, is he a subject?, is he an International Law person? Or what is he? That is
why we are saying the legal position/status of individuals is unique.
They have a lopsided position at the International community. Certain rights are conferred
upon them even by I.L, Treaty law but they cannot espouse as it were, the benefit of those rights
at International Tribunal in their own individual capacity. So where are they? They are neither
hot nor cold? Wako kati kati am?}
Point to note: Question: What's is the interplay between treaties and protocols? Treaty is the
main agreement concluded between or among states. A protocol is a side agreement that either
amends a particular part of the treaty or seeks to implement a particular aspect of the treaty. If
you look for example at the treaty establishing East Africa Community it provides for various
things: Monetary union, Custom union e.tc. that is what is provided in the frame work treaty,
but the states have had to negotiate and adopt side agreements. Those are what are called
protocols. Side agreements to make provisions for: custom union, common market, monetary
union e.t.c. Those are what are called protocols.
e) The Holy See(subject of International Law)
Some Kind of Introduction to the Holy see: How many of us are Catholics? Who is the head of
Catholic Church? The Pope right?. Have you ever seen when he goes out of the Vatican city and
visits foreign states ?..... Does he receive a red carpet welcome?, Do the foreign states parade

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their military forces for him to inspect? Why do they do that? That is courtesy that we reserve
for visiting head of states and Govt.'s. Why do they do that? Is he a head of state/Govt. Is the
Vatican city a state? What is the international legal status of the Pope? We don't do the same
thing to the head of Anglican Church the Archbishop of Canterbury? Do we? No.....Why then
do we do so for the Pope?.............. Pope is a head of Govt/State. Further explanation below:
The international legal personality of the Pope has been recognized since medieval
times. This personality was based on the Pope’s positions as Spiritual Head of the
Catholic Church and as The Ruler of the Papal States.As spiritual head of the Catholic
Church, the pope occupies a distinct position.
As a ruler of the Papal stateshe was as sovereign as any other monarch.
This position remained unchanged until 1870 when Rome fell and Italy annexed the
Papal States. The pope was deprived of his temporal sovereignty but retained the
International Personality flowing from his position as spiritual head of the Catholic
Church. By an act of the Italian parliament known as The Law of Guarantee 1871 the
Italian state granted certain guarantees to the Pope and the Holy See. The relationship
between the Holy See and 3rd states was henceforth uncertain although several states
sent envoys to the Pope and agreements known as concordats continued to be concluded.
The position of the Holy See was not clarified until 1929 when the Lateran Treatywas
concluded between Italy and Holy See. Apart from regulating the status of the Catholic
Church in Italy and providing for the financial compensation of the Holy See for the
losses incurred in the annexation of the Papal States, the Lateran Treaty also created
the Vatican State thereby constituting a physical basis for the legal personality of the
Holy See (the physical basis in the sense that it has its own territory. The Holy See had to have
some soil, some area on planet earth where it would be. You are going when we get there that one
of the requirement of statehood is a territory. There must some area on this planet earth that is
under the control of a particular entity.
You cannot have a state in the air. You cannot have a state in a vacuum area. It must occupy
some area on this planet earth however small.)
The Vatican State is the territory occupied by the Holy See. From the point of view of
International Law, the Holy See is a state and hence an International law person that
maintains diplomatic relations with 3rd states and concludes both bilateral and

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multilateral treaties with other International law persons.{that is, binding international
legal agreements}. The Vatican State has a military separate from the Papal States and
also the Right of audience with the president. {Lecturer's Explanation: One will see that
when Pope Francis appoints his,....they are not called ambassadors they are called Nuncios. The
Nuncio will present his credentials to Uhuru Mwana Wa Kenyatta at state house because the
Nuncio is a personal representative of the Pope as a head of state to Uhuru Kenyatta as another
head of state. The Holy See is in fact a small part of Rome leave alone Italy. In fact it is less than
a Hectare of land. It is about 0.4 Hectare.
The size of the territory does not matter for purposes of International law Papal states were
states which were under the authority of the Pope.
Apart from being the head of Catholic Church the Pope was also the head of other small states
which he was exercising Authority over ,or he had as it were governmental Control over. So
when Rome fell & Italy annexed Papal states, Papal states became part & parcel of Italy& Italy
agreed to compensate for the losses incurred by the administration of the Papal States. They were
called Papal states because they were under the jurisdiction of the Pope. In other words they
were called in Quotes " the Pope's States". Does the Holy see fulfill all the four elements of being
an international legal personality? Yes, it does because it is a State. Is Holy See a member of the
U.N?Holy See is not a member of the U.N the reason being not all states are members of the
U.N. but it has an observer mission to the U.N and on a number of occasions the Pope has
addressed the U.N. General Assembly. It concludes agreements with other states, it exchanges
diplomatic envoys with other states, it can sue so to speak and be sued at International Law.
People of the Holy See are not bound by the municipal law of Italy.

Assignment FOR NEXT LECTURE:

- Are National Liberations Movements, transnational corporations such as ICR or Unilever,
International NGOS like Red Cross, Human rights watch international legal persons?
- Read and discuss what legal criteria and entity must meet or satisfy in order for it to qualify
as a state of international law.
ENDZ LESSON SEVEN!!!!!@#$%&***":::&#@@!~~

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LESSON EIGHT:
Practice question
"The rigid assumption that only sovereign states are the subjects of I.L is giving place to the idea
that other entities notably certain International Organizations like the United Nations itself as
well as individuals ,now subjects of International Law for most practical purposes" Do you
agree?
Interpret the question as to what it means to be an I.L person. Then ask yourself which entities
qualify to be I.L persons?
Last time we stopped at the point where we had seen that the Holy See is an I.L person by virtue
of it being a state. A state that maintains Diplomatic relations with other states including
Kenya and a state that concludes and has concluded several treaties with other states.

f) International Organizations(objects) except UN which is a subject.

States increasingly find it convenient to establish international machinery for the
purpose of carrying out tasks of mutual interests. I want you to know that, they
therefore institute distinct centers of action for the furtherance of common goals
designed to perform only those activities that states delegate to them. {Lecturer's
Explanation:You can look at East African community as such an example.When Kenya ,T.Z,
U.G initially came together to establish East African community they were convinced that there
were certain common issues that would be as it were hanging or managed through an
institutional machinery that would do that on their behalf. So that individually they don't have
to do what is common to all of them. So what do you do? You establish an International
machinery and give it those functions, to carry out those functions that are common, so that you
don't as it were end up splitting hair or splitting resources...pull these resources together and
carry out the functions that are common to all member states. I said initially, because right know
Rwanda and Burundi are members of the East African Community and if Silvester Kiir and

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Macharia were not fighting South Sudan would be in an advanced stage of joining the
community. It's not only the E.A community, you can look at the A.U. Also African states
established the OAU for purposes of carrying out mutual interests. When you look at the
constitutive act of the African union member states of Africa are saying look' A.U we are
creating you to discharge these functions on our behalf. This is because we can't do them
individually, so we are entrusting you to carry them out on our behalf because they are matters
of common concern to the African Continent and we think that, if they are addressed centrally
that would be more convenient than if they are addressed at the individual state level, so you
come up with the African Union. In 1945 you come up, with the U.N, the U.N entrusted with
task of ,maintaining of International Peace and security on behalf of the member states of the
U.N. So that they don't have to do it individually, because if it is individually done, some
countries may not have the resources to do that. Imagine my friend state that I have been
talking about, Nauru in the South Pacific of 20,000 people what can they do to maintain
International Peace and Security. But when they join the U.N, and as an Organization, when
the U.N takes up the issue of maintenance of International peace and security and that becomes a
collective function. So the U.N acts on behalf of member states.
If you look at Article 24 Charter of the U.N you will see the U.N Security Council being given
the primary responsibility for the maintenance of International peace and security and it is clear
when the council does that it is acting on behalf of the member states of the U.N. This is what we
are saying here}
The object of the constituent instrument (like the UN charter, or Constitutive Act of the
A.U) of such international machinery must be to create a new subject of law endowed
with a certain autonomy to which the states parties entrusts the task of realizing
common goals.
An international organization must satisfy at least 3 conditionsin order for it to qualify
as having legal capacity under International law( International law personality).
Namely:
1) It must be a permanent association of statescreated by treaty or agreement, to
attain certain common objectives and having its own administrative organs.
{Lecturer's Explanation:I have just given you the example of E.A community created by a
treaty as an association of the 5 partner states. The A.U, created by the Constitutive act of

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 the African union. If you look at the Constitutive Act you will see what objectives the
African Union was created for . Also if you look at the Constitutive Act you will see the
African Union having its own administrative organs. If you look at the Charter of the U.N,
the Charter is a treaty,....50 States participated in the San Francisco conference in June
1945, to create the U.N. They created the U.N by means of a multilateral treaty. The Charter
of the U.N is a multilateral treaty. It must be created by agreement or treaty and if you look
at Article 1 &2 of the U.N Charter you will see the purposes and principles for which the
U.N was created. If you look at, I believe Article 7 of the U.N charter you will see the
principle organs of the U.N, & when the U.N is acting it does not act through a member
state, it acts through its own Organs.}
2) It must exercise some powerthat is distinct from the sovereign power of its member
states.

3) Its competences must be exercisable on an international level and not confined

exclusively to the national system of its member states.( it must not be dependent on
the structures of the member states for the discharge of its functions if it does so then it is not
competent)
{Lecturer's Obiter Dicta : Is the International committee of the Red cross an International
Organization? Does it satisfy these 3 conditions. Is it a permanent association of states ? Is
it created by treaties? Does it exercise power that is distinct from the sovereign power of the
member states? In fact, does the International Committee of Red Cross have power over any
state? It doesn't have any power that it exercises over member states. Does it have any power
to as it were operate at an International Level? It does. Then why is it not an International
Organization. Do we now agree that it is not an International Organization? How about
AMNESTY International Or Human Rights Watch ? Are they International law Persons?
Read Article 71 of the U.N Charter which states: The Economic and Social Council may
make suitable arrangements for consultation with non-governmental
Organizations which are concerned with matters within its competence. Such
arrangements may be made with International Organization and, where
appropriate, with national organizations after consultation with the member of the
United Nations concerned. That is what gives the International committee of the Red

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 Cross the International status it enjoys. What we are saying is that these organizations:
Amnesty International ,Human Rights Watch ,International committee of the Red Cross,
Green Peace International which is very notorious in regards to matters of
Environment ,...e.t.c these are N.G.O's . You know and we are going to get to this, I.L
makes a distinction between Intergovernmental International Organizations and Non-
governmental International Organizations. So it is Intergovernmental
International Organizations that are International Law subjects because they are
created by treaties. Non-governmental International Organizations are not
International Law Subjects. I think we shall leave it there for know.}

The leading judicial authority on theInternational law personality of international

organizations is the advisory opinion of the International Court of Justice in the
Reparations Case.
It must be noted however that, when states create an International Organization they
set it up for specific purposes and in this respect the organization’s legal personality
must be treated as being relative to those purposes.
Consequently, the question whether an international organization posses International
law personality can only be answered by examining its functions and powers as
expressly conferred by or to be implied from its constituent instrument and
developed in practice.{Lecture's Explanation: This is what we are saying and you will see it
when you look at the Charter: When States creates an International Organization, they create
that Organization to discharge certain functions and as it were to perform certain acts. So states
confer powers and functions on that Organization. We are saying that the International law
personality of that Organization is relative(considered in relation to) to the functions and
powers conferred upon it by the founding states. What we are saying in other Words is that the
International law personality of an International law Organization as it were is not absolute.
It is limited to the powers and functions that are conferred to that Organization by the member
states. If you look at the Charter of the U.N(Article 104 states:The Organization shall enjoy
in the territory of each of its Members such legal capacity as may be necessary for the
exercise of its functions and the fulfillment of its purposes.) you will see, that the Charter

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is very clear that the U.N does not enjoy absolute International law personality .It enjoys such
personality as will enable it to discharge its functions as provided for in the charter}.
In other words, unlike states, International Organizations have a limited competence
and field of action.

As the ICJ stated /put it in its advisory opinion on The Legality of the Threat or Use of
Nuclear Weapons (1996) ICJ Rep 90, paragraph 25(Go and read)
“International organizations are subjects of international law which do not, unlike
states, posses a general competence. International organizations are governed by the
principle of specialty, that is to say, they are invested by the states which create them
with powers, the limits of which are a function of the common interests whose
promotion those states entrust to them.”
{Lecturer's Explanation:If you look at Article 104 of The U.N Charteryou will see exactly
what we are talking about, and it states that:the Organization(U.N) shall enjoy in the
territory of each of its Members such legal capacity as may be necessary for the exercise
of its functions and the fulfillment of its purposes.
And then again if you look at Article 105 of The U.N Charterit States that:Article 105 (1.)
The Organization shall enjoy in the territory of each of its Members such privileges
and immunities as are necessary for the fulfillment of its purposes.
The Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep 90, paragraph 25
An advisory opinion on this issue was originally requested by the World Health
Organization (WHO) on 3 September 1993: In view of the health and environmental
effects, would the use of nuclear weapons by a state in war or other armed conflict be a
breach of its obligations under international law including the WHO Constitution?
The ICJ considered the WHO's request, in a case known as the Legality of the Use by a
State of Nuclear Weapons in Armed Conflict (General List No. 93), and also known as
the WHO Nuclear Weapons case , between 1993 and 1996. The ICJ fixed 10 June 1994 as

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the time limit for written submissions, but after receiving many written and oral
submissions, later extended this date to 20 September 1994. After considering the case
the Court refused to give an advisory opinion on the WHO question. On 8 July 1996 it
held, by 11 votes to three, that the question did not fall within the scope of WHO's
activities, as is required by Article 96(2) of the UN Charter. On 15 December 1994 the
UN General Assembly adopted resolution A/RES/49/75K. This asked the ICJ urgently
to render its advisory opinion on the following question: Is the threat or use of nuclear
weapons in any circumstances permitted under international law?
Court's analysis of illegality of nuclear weapons
Deterrence and "threat"
The court considered the matter of deterrence , which involves a threat to use nuclear
weapons under certain circumstances on a potential enemy or an enemy. Was such a
threat illegal? The court decided, with some judges dissenting, that, if a threatened
retaliatory strike was consistent with military necessity and proportionality , it would
not necessarily be illegal. (Judgment paragraphs 37–50)
The legality of the possession of nuclear weapons
The court then considered the legality of the possession, as opposed to actual use, of
nuclear weapons.The Court looked at various treaties , including the UN Charter , and
found no treaty language that specifically forbade the possession of nuclear weapons in
a categorical way. The UN Charter was examined in paragraphs 37-50 (paragraph 37:
"The Court will now address the question of the legality or illegality of recourse to
nuclear weapons in the light of the provisions of the Charter relating to the threat or use
of force"). Paragraph 39 mentions: "These provisions [i.e. those of the Charter] do not
refer to specific weapons. They apply to any use of force, regardless of the weapons
employed. The Charter neither expressly prohibits, nor permits, the use of any specific
weapon, including nuclear weapons. A weapon that is already unlawful per se ,whether
by treaty or custom, does not become lawful by reason of its being used for a legitimate
purpose under the Charter." Treaties were examined in paragraphs 53-63 (paragraph 53:
"The Court must therefore now examine whether there is any prohibition of recourse to
nuclear weapons as such; it will first ascertain whether there is a conventional
prescription to this effect"), as part of the law applicable in situations of armed conflict

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(paragraph 51, first sentence: "Having dealt with the Charter provisions relating to the
threat or use of force, the Court will now turn to the law applicable in situations of
armed conflict"). In particular, with respect to "the argument [that] has been advanced
that nuclear weapons should be treated in the same way as poisoned weapons".

The Court concluded that "it does not seem to the Court that the use of nuclear weapons
can be regarded as specifically prohibited on the basis of the [...] provisions of the
Second Hague Declaration of 1899, the Regulations annexed to the Hague Convention
IV of 1907 or the 1925 Protocol" (paragraphs 54 and 56)". It was also argued by some
that the Hague Conventions concerning the use of bacteriologicalor chemical weapons
would also apply to nuclear weapons, but the Court w as unable to adopt this argument
("The Court does not find any specific prohibition of recourse to nuclear weapons in
treaties expressly prohibiting the use of certain weapons of mass destruction",
paragraph 57 in fine ).
With respect to treaties that "deal [...] exclusively with acquisition, manufacture,
possession, deployment and testing of nuclear weapons, without specifically addressing
their threat or use," the Court notes that those treaties "certainly point to an increasing
concern in the international community with these weapons; the Court concludes from
this that these treaties could therefore be seen as foreshadowing a future general
prohibition of the use of such weapons, but they do not constitute such a prohibition by
themselves" (paragraph 62).
Also, regarding regional treaties prohibiting resource, namely those of Tlatelolco (Latin
America) and Rarotonga (South Pacific) the Court notes that while those "testify to a
growing awareness of the need to liberate the community of States and the international
public from the dangers resulting from the existence of nuclear weapons", "[i]t [i.e. the
Court] does not, however, view these elements as amounting to a comprehensive and
universal conventional prohibition on the use, or the threat of use, of those weapons as
such." (paragraph 63).
Customary international law also provided insufficient evidence that the possession of
nuclear weapons had come to be universally regarded as illegal. Ultimately, the court

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was unable to find an opinio juris (that is, legal consensus) that nuclear weapons are
illegal to possess. (paragraph 65)

However, in practice, nuclear weapons have not been used in war since 1945 and there
have been numerous UN resolutions condemning their use (however, such resolutions
are not universally supported—most notably, the nuclear powers object to them.
(paragraph 68-73) .The ICJ did not find that these facts demonstrated a new and clear
customary law absolutely forbidding nuclear weapons.
However, there are many universal humanitarian laws applying to war. For instance, it
is illegal for a combatant specifically to target civilians and certain types of weapons
that cause indiscriminate damage are categorically outlawed.All states seem to observe
these rules, making them a part of customary international law , so the court ruled that
these laws would also apply to the use of nuclear weapons.(paragraph 86) The Court
decided not to pronounce on the matter of whether the use of nuclear weapons might
possibly be legal, if exercised as a last resort in extreme circumstances(such as if the
very existence of the state was in jeopardy).(paragraph 97)
Decision
The court undertook seven separate votes, all of which were passed:
1. The court decided to comply with the request for an advisory opinion;
2. The court replied that "There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons";
3. The court replied that "There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as such";
4. The court replied that "A threat or use of force by means of nuclear weapons that is contrary
to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the
requirements of Article 51, is unlawful";
5. The court replied that "A threat or use of nuclear weapons should also be compatible with the
requirements of the international law applicable in armed conflict, particularly those of the
principles and rules of humanitarian law, as well as with specific obligations under treaties and
other undertakings which expressly deal with nuclear weapons."

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6. The court replied that "the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and in particular the principles and
rules of humanitarian law; However, in view of the current state of international law, and of the
elements of fact at its disposal, the Court cannot conclude definitively whether the threat or use
of nuclear weapons would be lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake"
7. The court replied that "There exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control".
As international law persons, International Organizations enjoy a number of privileges
and rights.
1) They have the right and capacity to enter into international agreements with
member states and non-member states on matters within their province. These
agreements are all legally binding effects of international treaties proper. {Lecturer's
Explanation: I think we have already seen one such a case. Do we remember the advisory
opinion of the I.C.J on the U.N Headquarters Agreement dispute between the U.S and
the U.N? what we are saying here and we are going to see, it is only International law
persons that can conclude treaties and that's why we are saying that International
Organizations have the right to enter and actually even the capacity not just the right, to
enter into International agreements with states and other International Law Persons. I have
told you for Example that: Kenya govt. or Kenya for that matter has a headquarters
agreement with the U.N regarding the Gilgil conference. There are certain things that Kenya
cannot do under that agreement to the conference in Gilgil. There are certain privileges and
immunities that Kenya must extend to certain staff at Gilgil and so on and so forth. That
agreement was not between Kenya and another state, it was between Kenya and the U.N.
and in event of that agreement being violated as we say here, it has all the legally binding
effects of International Treaties.}

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2) They have the right to enjoy immunities and privileges from the jurisdiction as well
as execution of states courts for acts and activities performed pursuant to their
functions as laid down in their constituent instruments.
[ Explanation :Article 105 (1) of United Nations Charter states"The Organization
shall enjoy in the territory of each of its Members such privileges and immunities as are
necessary for the fulfillment of its purposes."]
3) They have the right to protection of all their agents acting in territory of member
states or 3rd states in their official capacity as international civil servants.{Lecturer's
Explanation: If you look at Article 105(2) of the U.N Charter, you will see what we are
talking about: Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are necessary for the
independent exercise of their functions in connection with the Organization.
This means their agents /officials must be protected and they enjoy those immunities.}
4) They have the right to bring an international claim with a view to obtaining
reparation for any damage caused by member states or by 3rd states to their assets or
their officials acting on their behalf.(Remember the Reparation case. That is where this is
coming from)
Question and Answers Session[Yaani Uliza ujibiwe or as the Professor says "ask
know and if you don't, I will ask you in the exam....]:
Question one: Is International Labour Organization an International Law person? I.L.O is
an International Law person. Is there any doubt about that?Did we not say when we were
looking at either the Reparation case or sources of I.L that indeed, when the I.C.J was giving
its advisory opinion regarding the legal status of the U.N it relied on the previous advisory
opinion of the Permanent International Court of Justice regarding the international status of
I.L.O. The I.L.O is an International Organization in fact to put it even better the I.L.O, is
an Intergovernmental International Organization
It has got its own Constitution, member states subscribed to that Constitutione.t.c, It one of
the 16 specialized Agencies of the U.N . I think it is Article 63.of the Charter , which
states :1)The Economic and Social Council may enter into agreements with any of
the agencies referred to in Article 57, defining the terms on which the agency

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concerned shall be brought into relationship with the United Nations. Such
agreements shall be subject to approval by the General Assembly. 2).
It may coordinate the activities of the specialized agencies through consultation
with and recommendations to such agencies and through recommendations to the
General Assembly and to the Members of the United Nations. Article 63of the
Charter brings Autonomous International Organizations like the I.L.O,W.H.O,
F.A.O,W.M.O, I.O.M, U.N.E.S.C.O, all those into the relationship with the U.N pursuant
to what are called relationship agreement concluded on behalf of the U.N by the Economic
and Social Council and individual autonomous Organization. Then they are brought into
the fold of the U.N System as specialized agencies of the U.N.}
Question 2: Why do International Organizations Enjoy privileges as International law
persons? Answer: Member States of Africa get together and create African Union and they
say "Africa Union we are creating you to do A,B,C,D on our behalf, & for you to do
A,B,C,D on our behalf you shall enjoy these privileges and powers in our territories.
Imagine a situation where the African Union, is carrying out its functions, but when you
have its officials in Kenya, we don't allow them to enjoy immunities and privileges from our
local jurisdiction, they are arrested they are detained, they are done this or that.. ..Will the
A.U be able to carry out its functions that we as the member states have conferred
on it? That's the question. Treaties andPrivileges are in short are purely functional .
They are to enable International Organizations and its officials to function effectively in the
territories of the states where they are . "Okay". Just like we will see when we get there that
Diplomatic immunities and privileges are merely to enable the diplomatic agents, to carry
out their diplomatic functions in the host state. That is why we cannot go arresting, "you
know" every diplomatic agent that violates our local law, because if "and we will see this
when we get there" if we have a foreign diplomat who keeps on violating our local law , that
in itself will be a breach of International Law. This is because I believe under Article 41 of
the 1961 Vienna Convention on Diplomatic Relation which states that: Without
prejudice to their privileges and immunities, it is the duty of all persons enjoying
such privileges and immunities to respect the laws and regulations of the receiving
State. They also have a duty not to interfere in the internal affairs of that State.,

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Foreign Diplomats are under duty to obey and respect the local laws of the state they are
serving.
So if we have a foreign Diplomat who does not obey our local laws then we have a number of
remedies available to us. The first one is to declare him a P.N.G(Persona non grata) and we
demand the sending state to take him immediately. Article 9 of1961 Vienna Convention
on Diplomatic Relation states that: The receiving State may at any time and without
having to explain its decision, notify the sending State that the head of the mission
or any member of the diplomatic staff of the mission is persona non grata or that
any other member of the staff of the mission is not acceptable. In any such case, the
sending State shall, as appropriate, either recall the person concerned or terminate
his functions with the mission.
A person may be declared non grata or not acceptable before arriving in the
territory of the receiving State. The Second remedy available to us will be to ask the
sending state to waive that persons immunity so that we can have him arrested.
This is under, Article 32 of the 1961 Vienna Convention on Diplomatic Relation
which states that: The immunity from jurisdiction of diplomatic agents and of
persons enjoying immunity under article 37 may be waived by the sending State. I
don't know how many of you have read about this case involving the Death of the
Venezuelan Ambassador to Kenya. One of the accused is a Venezuelan National who is by
the way my L.L.M student. He was the first Secretary of the Venezuelan Embassy, and as
the First secretary of the Venezuelan Embassy he enjoyed Diplomatic privileges. But when
that happened, and it happened on our territory and we are going to see, we had all the right
to say "Venezuela waive the immunity of this man so that we can arrest him try him" The
Venezuela obliged. They waived the immunity and we arrested him. I think I have given
more than the answer. Short Answer to that question is simply ;FUNCTION."okay......."
Let's look at two special cases...................}

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Two Special Cases on International legal personality
There are 2 special cases that must be considered because of their international profiles.
The first, is the case of national liberation movement that sprung up in the late 60s and
early 70s and the second is that of non-governmental organizations and transnational
corporations that are acting in various sectors of international affairs:
National liberation movement(objects of International Law)
The emergence of organized groups fighting on behalf of a whole ‘people’ against
colonial powers and alien domination is a characteristic feature of the post world war II
era especially in Africa and Asia. Along with the fight against colonialism the groups
broadened their objectives to include struggles against racist regimes and alien
domination .
Struggles of this type were prevalent from the 1960s until the 1980s raising problems
concerning the international legal status of these liberation movements of people's
under colonial alien or racist domination. The South West Africa Peoples’
Organization(S.W.AP.O which was a liberation movement for Namibia), the African
National Congress(A.N.C which was a liberation movement for South Africa), and the
Palestinian Liberation Organization(P.L.O) are examples of such representative
movements. {Lecturer's Says: Remember I told you some of these movements had observer
status or observer mission at the U.N .Their leaders were invited or allowed to address the U.N
General Assembly)With regards to such liberation movements, the situation is different
from that of the traditional category of belligerence, although there has been some
overlap in practice. {Lecturer's Explanation: I want you to see the distinction here...Remember
when we talked about belligerence. We said belligerence or insurgents are groups of armed people
who rise against the established Government in an independent sovereign state. That's why
they are belligerents in other words they wage a civil war either to topple the Govt. in power or
to secede from the state on whose territory they are we call them belligerents or insurgents.Here
the National Liberation movements are fighting as it were for their freedom. Freedom from
colonialism, freedom from racism, freedom from alien domination. Why are they different from
belligerents?

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They are different from belligerents because these are people who are fighting for their
internationally recognized right of self determination and that's what makes them different
from belligerents. This is because as you note if you look at Article 55 and Article 1(2) of the
U.N Charter the issue of self-determination comes out very prominently.
Article 55 of the Charter states: With a view to the creation of conditions of stability and
well-being which are necessary for peaceful and friendly relations among nations based on
respect for the principle of equal rights and self-determination of peoples, the United Nations
shall promote: a]. higher standards of living, full employment, and conditions of economic and
social progress and development; b]. solutions of international economic, social, health, and
related problems; and international cultural and educational cooperation; and c]. universal
respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
Article 1(2) of the Charter of the U.N also states:To develop friendly relations among
nations based on respect for the principle of equal rights and self-determination of peoples,
and to take other appropriate measures to strengthen universal peace.
This demonstrates that people are entitled to self determination and the U.N will facilitate the
realization of people's right to self-determination. This is why as we saw the 1960's &, the
1970's the U.N general Assembly was actually on the fore front in facilitating decolonization in
Asia ,Africa and Latin America}
The International legal status of National Liberation Movements does not rest primarily
on the control of territory,but rather on the international recognition of the principle of
self determination that is their struggle to free themselves from colonial domination,
racist oppression or alien occupation pursuant to the principles& purposes of the UN
charter as expressed in the various resolutions of the UN general assembly.
Nonetheless, at least the future prospects of gaining effective control over population in
given territory appears to be a central element of their recognition as subjects of the
international community or at least as lawful belligerents.

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In essence, National Liberation Movementsenjoy limited international law personality
because they are conferred with certain rights and carry corresponding duties/
obligations.
First, they are the authority representing a ‘people’ who have the right to self-
determination, a community right that is general in character and applies to all member
states of the international community. {Lecturer's Explanation What we are saying is that
the right to self determination is not an individual right. It is a right that belong to a group of
people. That is why they are calling it a community right and it is a right that is recognized and
binding upon the entire International community }
Second, they enjoy the rights and bear obligations deriving from the general principles
on the conduct of hostilities as provided for in the 1977 Additional Protocols to the
1949 Geneva Conventions on the Laws of War.(Jus in bello). Look at the Geneva
Conventions act very important.
Third, they enjoy the rights and bear obligations deriving from rules on concluding
international agreements.
Various National Liberation Movementshave concluded arrangements on such matters
as the stationing of armed forces belonging to the movements on the territory of states
and the granting of independence. {Lecturer's Explanation :If you are Old enough you will
recollect that during the Heyday of A.N.C fighting Apartheid in S.A it had stationed it's armed
forces in several countries these are Tanzania, Mozambique ,Zambia e.t.c }
Fourth, they have the right to claim respect forand protection of the persons acting in
their official capacity as organs of the peoples representative structure as well as their
immunity from the jurisdiction of state's courts, for acts performed in that capacity.
{Lecturer's Explanation: I don't know if you remember that day, that week ,that month, that
year when the Late Yasser Arafat who was, the chairman of Palestine liberation Organization
from 1969 until his death in 2004, visited Kenya and the kind of security detail he was accorded.
I don't know whether you remember that day, that week ,that month, that year Sam Nujoma as
the President of S.W.A.P.O visited Kenya and the Kind of security detail he was accorded. When
Mahmoud Abbas visits a foreign state he is accorded certain immunities and privileges as a
representative of P.L.O fighting for the Liberation of Palestinians.

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Question :Is Palestine an International law Personality or is it a state? Put it this way and we
are going to see it when we get there: All International law persons are subjects of International
law, but not all subjects of International Law are International Law persons. The revolutions in
Arab states that is Tunisia Algeria e.t.c were Revolutions and revolutions are not Liberations. }
Non-Governmental Organizations and Trans-National Organizations(Objects of I.L)
Non-governmental organizations are not only visible on the international plain that also
play a vital role in different areas of international concern ranging from politics to social
economic arena, human rights, humanitarian relief and education, to women and the
environment.
Examples include: Amnesty International, Human Rights Watch, International
Committee of the Red Cross( I.C.R.C), World Conservation Union( this goes by the acro
name I.U.C.N that is International Union for the Conservation of Nature and Natural
Resources), and Green Peace International.
The role of non-governmental organizations in the International legal order is basically
informal. They are not International Law Persons so they cannot play a formal role in
the International Legal Order.They add additional expertise and make International
procedures more transparent.{Lecturer's Explanation: How many of you have heard of
I.U.C.N? I want to use it as an example as am a member of it. I.U.C.N has been very active in
areas of environmental management. Also W.W.F(World Wildlife Fund) e.t.c are NG.O's but
they have been very active in area of Environmental Management just like Green Peace
International who are very dramatic in the way they do their things and hence attract
International attention. But we are saying they add additional Expertise and make International
Procedures more transparent. I just wanted to give you the example of expertise that the
I.U.C.N has provided. Those who are familiar with a 1992 Convention called The U.N
Convention on Biological Diversity, the original draft of The U.N Convention on Biological
Diversity was provided by the I.C.U.N. It is the I.C.U.N that had actually started the whole
movement about the protection of Biological Diversity. It managed to put together a draft , a
draft that was ultimately adopted by U.N.E.P. & then U.N.E.P decided to as it were convene a
conference . I.C.U.N added that expertise that was as it were badly needed. The convention was
adopted in Gilgil May 1992.

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We are also talking of making International procedures more transparent I don't know if
you remember the week, months , years when the Kenya Govt. vehemently objected to some
findings that were placed before the U.N Commission on Human Rights in Geneva about
extra -judicial killings and things like that. You remember that there was no love lost between
AMNESTY International & Human Rights Watch and retired President Moi because
according to him they were poking their fingers in matters not within their province. But there
they were, they were challenging the Kenya Govt. about the situation of Human rights in the
country. They go there and say "NO" what Kenya government is saying is not true about
human rights in Kenya thereby making that procedure of the discussion of Human Rights more
Transparent. We are going to see that such N.G.O's are as it were accorded the Right to appear
to before some of these U.N meetings or U.N organs, so that they add more expertise ,they
add..." quote en' quote "more salt" }
They also engage in fact finding especially in the implementation of the international
norms in the area of human rights.
The relevant law governing the establishment and status of Non Governmental
Organization is that of the state where the NGO is registered and based. Although
Intergovernmental International Organizations may agree to grant NGO's
consultative or observer status such as the one The International Committee of the
Red Cross has to the Economic and Social Council of the U.N and thereby a limited
international status, NGOs do not thereby become international law persons governed
by rules of International Law.
Article 71 of the UN charter empowers the Economic and Social Council of the U.N to
make suitable arrangements for consultation with NGOs such as I.C.R.C, M.S.F, and
Amnesty International which are concerned with matters within the competence of the
Council. Article 71 of the UN Charter states: The Economic and Social Council may
make suitable arrangements for consultation with non- governmental organizations
which are concerned with matters within its competence. Such arrangements may be
made with international organizations and, where appropriate, with national
organizations after consultation with the Member of the United Nations concerned.
{Lecturer's Explanation:It is through those consultative arrangements or consultative
agreements with the Economic and Social Council of the U.N ,that you see International

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Committee of the Red Cross ,that you seeAmnesty International appearing before the U.N
Committee on Human Rights, that you see the Human Rights watch and so on and so
forth .This also why you see Green Peace International attending Conferences on
Environment and so on & so forth but that does not make them International Law persons and if
you care to read you will see that the Economic and social Council of the U.N is actually the one
that deals with virtually all aspects of Social ,Economic and Cultural issues within the U.N . It
is the one that signs relationship agreements with other International Organizations so that they
become specialized agencies of the U.N.
If you didn't know about 3/4 notmore, of the entire U.N budget is spent on Social ,Economic
and Cultural issuesthat come under the Co- ordination and Supervision of the Economic and
Social Council of the U.N. That is why you have the N.G.O's like Human Rights Watch
International Committee of the Red Cross e.t.c they are virtually in all places}
Trans-National Corporations
Question: Can anyone give examples of Trans-National Corporations in Kenya.( they are also
sometimes called multinational Corporations? The examples are: Uniliver, Cocola, Bata
Shoe company, B.A.T e.t.c
Although transnational corporations hold more economic and political power than
some states, the states have not upgraded them to international law persons.
{Lecturer's Explanation:Do you know that there are some Corporations out there whose budget
exceed Kenya National Budget and even Institutions. The entire budget of Harvard University
is more than the entire Kenya Govt. budget for a year}.
So we say, states have not upgraded them to International Law Persons. Why?It is
because states prefer to maintain control over them however difficult it is in practice to
effectively regulate the global activities at the national level.
The international legal status is derivative in that it can only be conferred by states.(And
we have seen so far ,haven't we? That, apart from states if you have any other International Law
person, that International law person is a creation of states)
It is states which set up International Organizations, and it is states which make treaties
or adopt customary rules giving international rights to corporations. It is only states
which can make contracts with corporations governed by International Law.

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Accordingly, some jurists argue that since International Law Personality exists only
when relationships are governed by international law, where for instance, a trans-
national corporation is granted a concession by a state, whereby the rights and duties of
the transnational corporation may be judged by international law that confers
functional or subjective international personality upon the transnational corporation.
However, this measure of personality does not, make the corporation an International
law person with all the attendant rights and duties. Accordingly in:
Texaco Overseas Petroleum Company vs. the Libyan Arab Republic 53 ILR 389 (1977)
In that case, the sole arbitrator a Professor of international law Pierre Dupuy
commenting on the legal status of Texaco stated"that the Internationalization of a
contractual relationship between a state and foreign private party neither meant that
the later(private party) was assimilated to a state nor that the contract entered into
with it was a treaty."{Lecturer's Explanation: What we are saying is that, when Kenya
enters grants a concession to with China Wu Yi to construct Thika super Highway, that
contract does not become a treaty and China Wu Yi does not thereby become an International
Law person, simply because we have said that, this contract will be governed by certain rules of
International law.That is what this Professor of I.L is saying. China Wu Yi still remains a
national entity governed by the Company law of the People's Republic Of China. If that
Company for example that agreement between China Wu Yi and Kenya Govt. says 'in the event
of any dispute the matter will be settled according to Kenya law, China Wu Yi cannot go outside
Kenya. Alright....!}
This dispute arose out of the nationalization by Libya of foreign owned oil interests in
1973 / 1974. Oil concessions were granted by the Libyan government giving Texaco the
exclusive rights to search for(explore), extract and sell oil from Libyan territory. One of
the questions that the arbitrator was to decide was whether the concession between the
company and the state gave the company any rights enforceable at international law.
After finding that the concession was an “internationalized contract”, the arbitrator
commented on the status of Texaco. He said, “... stating that a contract between a state
and a private person falls within the international legal order means that for the
purposes of interpretation and performance of the contract, it should be recognized that
a private person as a contracting party has specific international capacities. But, unlike a

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 state, the private person has only a limited capacity and his quality as a subject of
international law does enable him only to invoke, in the field of international law, the
rights which he derives from the contract... thus, the internationalization of certain
contracts entered into between a state and a private person does not tend to confer upon
a private person competences comparable to those of a state but only certain capacities,
which enable him to act internationally in order to invoke the rights which results to
him from an internationalized contract." {How many of us remember the Mr .Nasir Ali duty
free case it went to a place called ICSID? check it out}
 Although the 1965 Convention on the Settlement of Investment Disputes Between States
and Nationals of Other States established an International Centre for the Settlement of
Investment Disputes (ICSID) as a permanent mechanism under the auspicious of the
world bank whereby participating states and corporations can settle any differences
arising out of investment agreements this does not confer international law personality
on such individuals or corporations. The centre(ICSID) was established to settle
investment disputes by conciliation and arbitration and has jurisdiction over any legal
dispute arising directly out of an investment agreement between a contracting state and
a National of another contracting state which the parties to the disputes consent in
writing to submit to the centre.
Any Question or Comment
 Note: International corporations always retain the nationality of the Company where
they are registered in unless it is registered as a subsidiary in another country.
 What is the legal position in regard to county governments entering into direct
agreements with other countries or Govt.'s? Answer: Those agreements are not Treaties.
They are anything but not treaties because the county Govt.'s do not have the capacity to
conclude treaties. Okay...let's leave it there.
 Where does the World Bank fall under? World Bank is an Intergovernmental
International Organization. World Bank was established by what we refer to as Bretton
Woods agreement. If you go to the Library you will see the Bretton Woods Agreement
Act, that established the World Bank and the I.M.F. The World Bank was established by
treaty, the World Bank has Articles of Association that govern its activities among the
member states of the World Bank. It's not an N.G.O.

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States as International Legal Persons/International Law Persons.
States are the fundamental or primary subjects of International Law. Why are we
saying this? This is the reason...This is because they are the International entities which
besides controlling territory in a stable and permanent way, exercise the principal law
making and executive functions proper of any legal order. States are the backbone of
the International community. They possess full legal capacity, that is to say, they have
the ability to be vested with rights, powers and obligations under international law.

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Were they to disappear, the present/contemporary international legal order would
either fall apart or change radically. { Lecturer's Explanation: Remember Westphalia 1648.
Remember as we said the contemporary legal Order is based on a multiplicity of Sovereign
Independent states who are the primary actors in the Legal Order and above whom there is no
other Authority, that why we are saying if they were to disappear, the contemporary
international legal order would either fall apart or change radically }
What are States? What are they?
The definition of a state under international law is not clear because quite often it is not
possible to decide whether a particular entity is or is not a state.
{Lecturer's Explanation:We have just seen the Example of Western Sahara and if I were to add
to Western Sahara and ask you, is Palestine a state ? Would you tell me Yes or No.}
Briely(one of the writers of I.L) says that a state is an institution which men(and I dare
say and Women because remember when Briely was writing it was long time ago) establish
among themselves for the purpose of attaining certain objects the fundamental one
of which is a system of order on the basis of which other objects may be carried out.
Brownlie says that a state is a type of legal person recognized by International Law
although the possession of legal personality is not in itself a sufficient mark of
statehood. However, he states/says that the criteria of statehood are laid down by the
law because if it were not so then ,statehood would be subjective such that a state
would be able to contract out of duties owed to another state simply by refusing to
characterize the other as a state.

{Lecturer's Explanation: What Brownlie is saying is that statehood is an objective legal status. It
is not relative. Once a particular entity has satisfied the criteria of statehood laid down by the
law that entity becomes a state.} However Brownlie does not say what a state is but, he
proceeds to look at the characteristics of statehood.
Greig Hazardsa definition of a state. He says that a state for the general purposes of
international law is a territorial unit containing a stable population under the
authority of its own government and recognized as being capable of entering into
relations with other entities that have international legal personality.
{Lecturer's Explanation : I want you to flag that last part:.....the recognition.... recognized as

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being capable of entering into relations with other entities that have international
legal personalityand I hope you see where Greig and Ian Brownlie are parting from so to
speak. Greig says that entity must be recognized while Ian Brownlie says ,that entity must meet
the legal criteria because they are there,so the status of an entity as a state is an objective status
because if it meets the legal criteria whether or not it has been recognized does not matter, it is a
state. Alright...}
Starke also says that no exact definition of a state is possible but that in so far as
modern conditions are concerned the essential characteristics of a state are well settled.
The starting pointfor the definition of statehood is Article I of the 1933 Montevideo
Convention on Rights and Duties of States which enumerates what are now widely
accepted as characteristics of statehood in international law. (Montevideo is the Capital
city of Uruguay) The article provides that the states as a person of international law
should possess the following qualifications:
a) A permanent population;
b) A defined territory;
c) A government; and
d) Capacity to enter into relations with other states.
{Lecturer's Explanation:You will note we said that article enumerates what is now widely
accepted as characteristic of statehood in customary I.L. I hope you remember that..}

These enumerations by the Article should be noted that is not exhaustive but merely a
basis for further investigations because not all the conditions/qualifications are final.
The criteria have been clarified and developed by international law especially by jurists
who on the basis of state practice have identified further elements that must be included
in the criteria for statehood.Lecturer's Explanation:What we are saying is that Article I of
the 1933 Montevideo Convention on Rights and Duties of States is nearer basis but it is
not exhaustive. You may have an entity that subscribes all those requirements but it is not a
state, and we are going to see that kind of entities}
1)Permanent Population
Some introduction: Is there a permanent population in Western Sahara? What is meant by
permanent? must the people residing in the given area be sedentary or they can even be nomadic.

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Can nomads be a permanent population and indeed Western Sahara was Nomadic does it
constitute a permanent population?
A state cannot exist without a population.(nopeople no state) The requirement for a
‘permanent population’ refers to a politically stable community. There is no prescribed
legal minimum number of people making up the population. For instance, the Vatican
City has an estimated resident population of about 1000; Tiny Nauru has a population
of 20,000 , the Seychelles about 150,000 and the Maldives Island has a population of
350,000.{Lecturer's Explanation: You see the Vatican has a residence of about 1000, Maldives
about 350,000...... are as much International Law person as China with 1.4 Billion, as India with
1.2 Billion, as the U.S with about now close to 500 million ...Remember sovereign equality.
Don't forget that.}
The criterion of population is not affected if the population of a state is nomadic.
Besides, international law does not require the population to be homogenous. The
criterion of a stable community refers to a group of individuals living within a certain
geographical area. (if you can identify these, people in a given geographical area then you can
talk of permanent population)

2)Defined Territory.
A fixed territory constitutes a basic requirement for statehood. The stable political
community must be in control of a certain area.{Lecturer's Explanation: what we are saying
is that that community must inhabit a certain area of planet earth. They must belong to
somewhere where we can say 'Yes' they are here.}The criterion of territory is connected with
that of permanent population and constitutes the physical basis for the existence of a
state. {So that permanent population must be as it were moving up and down within a defined
territory of planet earth. That permanent population must inhabit a defined area of planet earth.
That is what we mean when we talk of the physical basis for the existence of a state. The state
cannot exist in the air. A permanent population cannot be inhabiting the air space up there.
They must as it were inhabit part of the solum of planet earth. Alright... }

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There is no requirement that the frontiers of the state be fully defined and undisputed
either at the time it comes into being or subsequently.
For instance, the state of Israel was admitted to the U.N membership in 1948- 1949
although the final delimitation of its boundary had not been settled.(even up to nowthe
final delimitation of its boundary have not yet been settled ,they are still acquiring Palestinian
territory) What is important is the effective establishment of a political community
within an identifiable territory.
In the case of Deutsche ContinentalGas – Gesselschaftvs. Polish State (1929) 5 AD 11
In this case the German Polish mixed Arbitral tribunal(what that means is that the
arbitrators were German and Polish) held that in order to say that a state exists and can be
recognized as such it is enough that its territory has a sufficient consistency even
though its boundaries have not yet been accurately been delimited. The tribunal was
called upon to decide if Poland was comprised among the expression “Germany’s
enemies” and this involved a determination of whether Poland could have existed
before 1919 treaty of Versailles came into operation. The tribunal held that the
recognition in Article 87 of the Treaty was only declaratory of the state which was in
existence before the treaty. ( what we are saying is that Article 87 recognized Poland as a
separate state & what the tribunal is saying is that "Yea" it was in existence b4 that treaty.)
The fact that the former sovereigns of Poland had not recognized her and the fluid
nature of the Polish-Russian border were held to be irrelevant to the question of
existence. The tribunal stated, “Whatever may be the importance of the delimitation of
boundaries, one cannot go so far as to maintain that as long as this delimitation has not
been legally effected the state in question cannot be considered as having any territory
whatever. The practice of international law and historical precedence point to the
contrary. In order to say that a state exists and can be recognized as such- - - it is enough
that the territory has sufficient consistency, even though its boundaries have not yet
been accurately been delimited and that the state actually exercises independent public
authority over that territory." (So what we are saying is that boundaries may not be
accurately delimited so long as there is some consistency and it that shows that this area belongs
to Kenya , Kenya has exercised authority here and so on and so forth)

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Besides, international law does not require any minimum size of a territory. (just like it
does not require a minimum population it does not require a minimum size of a territory).For
instance, the Vatican occupies less than 100 acres, Nauru in the south pacific occupies 8
square miles, while the Principality of Monaco is a sovereign state forming an enclave
in French territory and covering an area of about 195 hectares about a third of which
has been claimed from the sea.(You can see that Kenya could be very many states .The
Vatican can easily fit in Kenya, Nauru can easily fit in Kenya, Monaco is in fact not even half
the size of land owned by Kenyatta and they are states, and we can fit another one the
Seychelles,& another one the Maldives and they are states) Neither does International Law
require geographical unity of the territory. The state may consist of territorial areas that
are separated and distinct from each other. Example: The Republic of Kiribati is an
archipelagic state comprising several islands some of which are as far as 1000 Km from the other.
(Archipelagic state- is a state that consist of a several group of Island e.g Philippines , Kiribati).
What is required is unity under a common legal system.
{Lecturer's Explanation: It is not Geographical unity but what one would call political unity
that is what it means to have unity under common legal system}

3)Government.
A government or at least some governmental control is required for qualification of an
entity as a state. The existence of an effective and independent government with
centralized administrative and legislative organs is generally the best evidence of a
stable political community. (Means a Govt. that does not as it were answer to any external
authority. A govt. that is answerable to the people that is aneffective independent government)
In certain cases however, the presence of effective government alone is insufficient to
support statehood.(Do you remember the U.D.I(unilateral declaration of independence )by Ian
Smith in present day Zimbabwe. Was Ian Smith Govt. an effective and independent Govt.?For
15 years remember, that is from 1965 to December 1980 when Southern Rhodesia gained
independence under the name of Zimbabwe, Ian Smith was in effective control. His govt. was in
effective control of the territory and you may be aware that for those 15 years nobody recognized
Southern Rhodesia as a state under Ian Smith even if his govt. was in effective control until

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1980 when uncle Bob Mugabe took over and he has refused to leave. That is why we are saying
the presence of effective Govt. alone is insufficient to support statehood. What we are saying is
that there may be an effective Govt. but the question that we always ask is :In whose interest is
that Govt. effective? Then we bring in the issues to do with self determination we were talking
about earlier on , human rights and so forth.You remember that when Ian Smith declared the
Unilateral Declaration of Independence, the Rhodesian Govt. under Ian Smith that took effective
control and was mostly comprised of members of the country's white minority and the
indigenous people were denied the right to self-determination. Hence the presence of that
effective government(Ian Smith Govt.) alone was insufficient to make it to be a state}.However,
once a government has been established, the absence of governmental authority does
not affect the existing state’s right to be considered as a state. This is because states have
often survived periods of anarchy, civil war, hostile occupation and absence of
government .{I want you to note this and don't make the mistake that I hear many people
making: Once you have a pre-existing Entity that has been recognized as a state, if and when its
Govt. disappears that does not affect its International Law Status. What we are saying is that a
state does not seize being a state because there is no Govt. and I will give you examples .
In our backyard Somalia , nobody in the International Community has ever doubted the
statehood of Somalia despite there being no stable Govt. since 1990. If Somalia were not a state
because there were no Govt., there is nothing to stop Kenya Ethiopia, Eritrea and perhaps
Djibouti sharing the spoils but none of the neighboring states has touched an inch of Somalia
Territory. Why? because Somalia is a State under International Law. It is still a member of the
U.N. it is still a member of many other International Organizations including the African
Union that what we are saying here. This is because states have often survived periods of
anarchy, civil war and hostile occupation. In 1935, up to 1938 when Italy invaded Ethiopia, and
the Emperor was forced into exile, that did not affect the statehood of Ethiopia. Ethiopia still
remained a state under International law.In 1990-1991 when Sadam Hussein Invaded Kuwait&
the Lord Mayor of Kuwait and his entire Govt. were forced into exile in Saudi Arabia that did
not affect the statehood of Kuwait. That is what we are saying here. We can see a situation of
Anarchy , civil war and Hostile occupation. Hostile Occupation in the case of Kuwait, Civil War
and Anarchy in the case of Somalia. That is what we are saying. So when you hear people
saying, there no state of Somalia , tell them you do not know what you are saying. Somalia is a

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state and its International status as a state has not changed and will not change even if for the
next 20 years they do not have a govt. in place.} However in order for a territory which has
not already achieved a status of a state to be considered as such, it must have a
government of its own and not be subject to the control of another state. That is to say a
puppet state is not a state in international law. {Lecturer's Explanation: How many of us
either from history or from age remember what the apartheid in South Africa had created
calledBantustans which were separate homelands for the blacks This were: Ciskei, Transkei,
Bophuthatswana, Venda, Gazankulu, KaNgwane, KwaNdebele, KwaZulu, Lebowa, and
QwaQwa. The homelands that the apartheid regime had created and installed Governmentsthat
were controlled by the apartheid regime. That is what we are saying. These were Governments
that were subject to the control of the apartheid regime and what South Africa was trying to do
then was to establish puppet states}
In order to ascertain the degree of governmental authority one must consider in whose
interest and for what legal purpose the government is effective.
In other words, the territory in question must be under an independent and sovereign
government and no other authority except that of international law. It must not be
subordinate to the will or legal authority of another state except international law.( That
iswhat I have just explained with example of Bantustans in South Africa.}
The form of government and its legality or legitimacy are not decisive for the criteria of
a state. That belongs to the domestic affairs of states. {Lecturer's Explanation: What we are
saying in other words is that we can end up with a Monarch Govt. or a military Govt. or we
can end up with a democratically elected Govt. because the form of government and its legality
or legitimacy are not decisive for the criteria of a state. Why are we saying that? The reason is
because that belongs to the domestic affairs of states}
4)Capacity to enter into relations with other states
Although the new entity may have a government capable of acting on its behalf, in
order for its claim to be a state to succeed the entity itself must be capable of entering
into relations with other states. The capacity of an entity to enter into relations with
other states derives from the control the government exercises over a given territory
which in turn is based on the actual independence of that state. The state must be

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independent of other states’ legal orders or any international agency and must be based
on a title of international law.
International law identifies two elements asevidencing the existence of independence.
Thefirst:is that the entity exists separately within established boundaries. This
emphasizes the link between territory, population, government and independence. All
four criteria must be present for the purposes of statehood.
The second:is that the entity is not subject to any other authority except international
law. Accordingly if an entity has its own executive legislative and judicial organs
conducts its foreign relations through its own organs; has its own legal system and
nationality law, then there is prima facie evidence of statehood.
External control through political and economic blackmail directed at weaker members
of International community does not in practice affect their status of statehood.

The legality of Origin.

(How has this state originated ?what is the background to its existence ?This is because that
background may have a bearing on whether or not it will be taken as a state. )
Some jurists argue and state practice in the recent years shows that an additional
criterion should be added to those enumerated by the Montevideoconventionand in
particular the legality of origin of the state in question.{ Lecturer's Explanation: What they
are saying is that we should go back and check was this state as it were ,created through lawful
means was it created in violation of rules of International Law. How was it created? Before they
say "yes" this is a state under International Law. How was it created? }A putative state which
is created in violation of the general principles of international law and which exists
because of such violation cannot be recognized as such. A putative state will be illegal
if it is created in violation of a prohibition of aggression and of the acquisition of
territory by force, right to self determination and the prohibition of racial discrimination
and apartheid.
Article 2 paragraph 4 states: 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.

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{Lecturer's Explanation: Right..... So there is that prohibition against the use of force or
aggression.}
Article 2 paragraph 4 of the UN charter which prohibits the use of force and aggression
has the status of juscogens( Lecturer's Explanation: What is the meaning of Jus Cogens:
Student's Answer: General principles of International Law for which you cannot deviate from
Professor's Answer : Put more explicitly:It's a peremptory norm of International Law from
which states cannot derogate even by agreement .So what we are saying here is that: that
provision(Article 2(4) of the U.N Charter) has become peremptory norm of I.L & no state can
derogate from the prohibition of the use of force and aggression in International Relations.
Alright... That is why I think I've told you that states cannot agree to wage war against another
state because war which is the use of force is prohibited by the general rules of International
Law.
Further Explanation inregard to Jus Cogens- it can also be defined as a fundamental
principle of International Law that is accepted by the International community of states as a
norm from which no derogation is permitted. Generally accepted jus Cogens include;Prohibition
of Genocide,maritime piracy, slaving in general(to include slavery as well as the slave trade)
torture, non-refoulement and wars of aggression and territorial aggrandizement. Unlike
ordinary customary law, which has traditionally required consent and allows the alteration of its
obligations between states through treaties ,peremptory norms(jus-cogens) cannot be violated
by any state "through international treaties or local or special norms or even general customary
rules not endowed with the same normative force"
Under Article 53 of the Vienna Convention on the law of treaties: any treaty that
conflicts with a peremptory norm is Void. The treaty allows for the emergence of new
peremptory norms but does not specify any peremptory norms. It does mention the prohibition
on threat of use of force and on the use of coercion to conclude an agreement. It States that" A
treaty is void if, at the time of its conclusion ,it conflicts with a peremptory norm of general
international law. For purposes of the present Convention a peremptory norm of general
International law is a norm accepted and recognized by the international community of states as
a whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character"

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As an example: International tribunals have held that it is impermissible for a state to acquire
territory through war.Also Article 52 of Vienna Convention states that: treaty is void if its
conclusion has been procured by the threat or use of force in violation of the principles of
international law embodied in the Charter of the United Nations. }
Consequently, anentity which has been created in breach of this rule cannot be
recognized by the international community. This is illustrated by the case
ofManchukuo a puppet state created by Japan following its invasion of the Chinese
province of Manchuria in 1931. The League of Nations refused to recognize
Manchukuoas a state.Modernexamples include the refusal by the United Nations to
recognize the Independent Turkish Republic of Northern Cyprus since it was created
as a result of the illegal Turkish military invasion of Cyprus in 1974.
{Lecture's Explanation:If you readvirtually all,..meaning the very first resolution and decision
of the U.N Security Council when Sadam Hussein invaded Kuwait,the UN Security Council
called upon the Member Statesof the U.N, not to recognize Sadam Hussein's grabbing so to
speak of Kuwait and not to assist or give any assistance to Sadam Hussein as it were, to facilitate
his grabbing of Kuwait. Okay. That is one case that, wherean entity has been created as a
result of use of force that entity even when it is a defined territory, with a permanent
population, with a capacity to enter into relations, with the Govt. effective it will not
be recognized as a state. That is why I was telling you Article 1 of the
Montevideoconvention is not exhaustive.
Additional criteria of Statehood
 When new entities are created in breach of the right of self determination and
the prohibition on the racial discrimination of apartheid, the international community
will refuse to recognize them as states and hence deny them personality under
International Law even though the other criteria for statehood are satisfied. For
instance when Indonesia unilaterally declared its independence on November 11th 1965,
the U.N called upon its members not to recognize the white minority racist government
on the ground that the new state was created in breach of the principle of self-
determination. I want you to note further and I think I have already given you this
example with respect to South Africa the creation of the Bantustans of Transkei,
Ciskei,Vanda, Bophutatswana and Benea without the consent of the Black majority

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population was condemned by the international community as the creation of puppets
of the apartheid regime. {Lecturer's Explanation: This is because what the Apartheid Regime
did was to create these Bantustans, these homelands for the Blacks and appoint a Govt. So it was
literally creating and imposing the administrative Unit on the people without their consent,
without their participation}

 Let us note Two points that are important:

The first one is this: Units within a federal may be allowed by the federal
constitution some autonomy including the freedom to conduct their own foreign
affairs.{Lecturer's Explanation:Do we have any federal state in Africa? Yes. Nigeria which is
the only Federal State in Africa. Nigeria is a Federal State with how many Federal Units? It has
Close to 40. The last time I counted they were 39.
Now under International Law and I want you to listen to this carefully because it is going to
come in the exam. Under International Law the International Law has The Federal Republic of
Nigeria. The 39 plus Federal Units, are not known. Why? because they don't have a separate
International legal status of their own. The U.S.A, has 50 federal Units. Under
International Law, it is the United States of America that is an International Law person.
None of the 50 federal Units of the U.S.A is an International Law person. None of them has an
International Law Status and that is why we are now saying that units within a federal state
may be allowed by the federal Constitution some Autonomy including the freedom to conduct
their own foreign affairs . The Constitutional Law or rather the Constitution of the Federal state
may allow some Autonomy to the Federal Unit BUT that does not make them or that
does not give them International Legal Status. They still remain units of the federal state
which is the Only International Law Person recognized at the International Level.}
In the normal case, the Federal unit will be acting as a delegate or agent of the current
state that is theFederal State. {Lecturer's Explanation: So you have a situation where the
Federal Constitution allows some autonomy to one or several of the units then those units will

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be acting as delegates or agents of the federal state. Okay..} To the extent that they are
allowed to do so , such units are regarded as having Limited International Law
Personality. {Lecturer's Explanation; You see the I.L Personality is limited to the extent
allowed by the Constitution. If you look for Example at the Constitution of the United
Republic of Tanzania that is now under review. A colleague of mine from the University of Dar
es Saalam sent me a draft but it is all in Kiswahili and I cannot now remember my Kiswahili. It
all in Kiswahili. That is how they do in Tanzania they start off in Kiswahili finish everything
and then translate in English .
The mere fact that the Constitution of United Republic of Tanzania allows Zanzibar (and this is
true because I have seen it myself),to conduct its own Environmental Management affairs, sign
Environmental treaties, separate and distinct from the United Republic of Tanzania does not
mean Zanzibar thereby becomes a state. That the point we are saying...Alright. It becomes as it
were an International Person Sui Generis because Why? The Federal Constitution has
allowed it some Autonomy }.
Such units are regarded by I.L as having limited International Law personality.
However, such units are not thereby states but International Persons SuiGeneris.
Examples include: Neuro-Russia and Ukraine under the former Soviet Union
constitution(you remember that during the days of the Soviet Union, Neuro -Russia and
Ukraine were distinct and separate members of the U.N despite the fact that they were part of the
U.S.S.R) and Zanzibar under the United Republic of Tanzania's Constitution.The most
important thing I want you to note is: Such units are not thereby by states but
International Persons Sui Generis.{Lecturer's Explanation; The mere fact that the
Constitution of United Republic of Tanzania allows Zanzibar (and this is true because I have
seen it myself),to conduct its own Environmental Management affairs, sign Environmental
treaties, separate and distinct from the United Republic of Tanzania does not mean Zanzibar
thereby becomes a state. That the point we are saying...Alright. It becomes as it were an
International Person Sui Generis because Why? The Federal Constitution has allowed it
some Autonomy .
Statehood entails certain rights and duties.
Under international law, a state has:

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1. Sovereignty over its territory and general authority over its nationals.{Lecturer's
Explanation: You see what we are saying is that: The moment Kenya became a state, there was
no way anybody else would come and tell Kenya what to do about or over its territory. This is
because it assumed sovereignty over the territory. That is why, if you remember those of you
who are old enough, President Moi kept reminding the International Community that Kenya is
a Sovereign Independent state and we have all the powers over the territory. That is: Powers to
make laws, powers to apply laws, the powers to execute laws over that territory.}
2. Status as an international law person with the capacity to own, acquire and transfer
property; to make contracts and enter into international agreement; to become a
member of International Institutions and Organizations and to pursue and be subject to
International law remedies. {Lecturer's Explanation: Lemmi pause here and ask? When
Western Sahara was admitted into the membership of O.A.U then in 1981 was it a state and is it
a state? Who is the President of Western Sahara? Or who is the head of state and head of Govt.
of Western Sahara? We are saying the capacity to become a member of International Institutions
and Organization. Western Sahara was admitted intomembership of the O.A.U in 1981 I believe
when Kenya hosted the O.A.U for the first and perhaps only time.
Perhaps only time because there was a resolution, that now, all summits of the head of state and
Govt.'s and Council of Minister's meeting's will always be held at the headquarters in Addis
Ababa. So that location is no longer there. What the answer to the question? As you digest that
let's go to the third point.....
3. The capacity to join other states in the making of International Law as customary law
or by International agreements(that is treaty law/conventional law) {Lecturer's
Explanation: If you read Ian Brownely he refers to something called "States In Statu
Nascendi (states that are in the process of being formed )" Will Western Sahara and
Palestine fall into that category? That is as it were, states that are in the process of being
formed . They are subjects of International law but are they state? That is why I told somebody
somewhere that all international law persons are Subjects of International Law, but not
all subjects of International Law are International Law persons. Could Western Sahara
and Palestine belong here (States In Statu Nascendi)?}
Thank you for enduring the Torture of the Professor.

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ENDZ OF LESSON EIGHT!!!!@#$%&***":::&#@@!~~

LATIN WORDS
 Jus FetialeReligious Rules which governed Roman External relations and formal
declarations of which was interalia recognized the inviolability of ambassadors and
was at the origin of distinction between just and unjust war.
 Jus Gentiumroman solutions to necessity of regulating legal relations of Roman
citizens and foreigners as Rome expanded
 Jus Civile applicable to relations between Roman citizens and was less formalistic
and based on the principles of equity and good faith
 In the middle ages, two sets of international law developed to deal with problems
that transcended national boundaries
 Lex Mercatoria (Law of Merchants)
 Maritime Customary Law
 Jus Federationis Rights granted to members of the Holy Roman empire to enter into
alliances with foreign powers and wage war provided that alliance or war were
neither against the empire or public peace
 Comitas Gentium (international Comity) rules of goodwill and civility founded
on the moral right of each state to receive courtesy from other states
 Binding force of international law traced to the fundamental principle of Pacta Sunt
Servanda i.e. agreements’ between states are to be respected. PSS manifests in itself
in all rules of IL.
 Sui generis- of its own kind; unique.
 Sui Juris-[Latin "of one's own right; independent" 1. Of full age and capacity. 2.
Possessing full social and civil rights. 3. Roman law. Of or relating to anyone of any
age, male or female, not in the postestas of another, and therefore capable of owning

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 property and enjoying private law rights .• As a status, it was not relevant to public
law.
 Ab -initio-From the beginning <the injunction was valid ab-initio

LESSON NINE.
RECOGNITION
What is recognition?
Lecturer's Initial Introduction Explanation : Let's look at this... :Riek Machar in South
Sudan is fighting President Salva Kiir. The latest information I have is that they have failed to
agree on signing a seize fire. So they are still at war with each other. Supposing Riek Machar in
South Sudan succeeds in taking over President Salva Kiir Government? What would be the first
issue that the International Community would be faced with? The International Community
would be faced with the issue of whether or not to recognize Riek Machar Government that has
taken over that of Silva Kiir. In 1971 when Idi Amin ousted who Doctor Milton Obote with a
military coup when Milton Obote was away attending the commonwealth conference in
Singapore. The International Community was faced with the issue of whether or not to
acknowledge the Government of Idi Amin. I remember that issue being raised at the Kenyan
parliament by mp's and our then minister for foreign affairs the late Dr Njoroge Mungai said
you now "the Kenyan Govt. will wait and see whether the Idi Amin Govt. was going to last or
in other words whether it was to be permanent , whether or not it was going to be in effective
control of the entire territory of Uganda and so on and so forth. If it will be then the Kenyan
Govt. will be ready and willing to do business with it or worse to that effect. On the other
hand,Ndugu Nyerere (former prezzo of T.Z)says absolutely no way. Am not going to recognize
that buffoon leave alone his own Govt. And am not going to sit at any table with him. So
Nyerere throughout refuses to recognize the Government of Idi Amin and as you may be aware
come early 80's, he leads his soldiers to march into Kampala to get Idi Amin out of power. Is that
what happened? So he refuses to recognize Idi Amin. Jomo Kenyatta Son of Muigai says "aah...
alright ...we have seen Idi Amin's Govt. seems to be permanent, it is in effective control of the
territory, we have no choice but to interact with it. And I remember as I was old enough, Jomo
driving all the way from Nairobi to Kampala to meet Idi Amin. But Nyerere completely refused.
You now Jomo never flew. Do you now that Jomo Kenyatta never flew? He always used the
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road. Student asks: How about when he was going to Britain?Answer: But that was long time
ago when he came back to Nairobi he never flew out of Kenya. Even within Kenya he never flew
to Mombasa or to Kisumu.. It was always by road.
In fact those of you who do not know we had a state lodge at Mutito Wandei. This was where
when the old man was going to Mombasa would stop by Mutito Wandei the state lodge there
entertained and so on and then proceed to Mombasa. So that is what happened. So now... How
about this..Do we still have the Soviet Union? What happened to it?..Disintegrated. So when the
Soviet Union disintegratedand we ended up with many ...stan's e.g. Kazakhstan, Kyrgyzstan,
Tajikistan, Turkmenistan, Uzbekistan all those stan's.., Georgia, Ukraine ,Moldova, Belarus,
Estonia, Latvia ,Lithuania, Armenia, Azerbaijan,Russia all those. The International Community
was faced with the issue of "Now do we recognize these"Min- States" that are emerging from
the Soviet Union? What do we do with them? .... Okay ..eeh.... which one is this Federal
Republic of Yugoslavia does it still exist after the death of Josef Tito? No. You now have
Serbia ,Croatia, Montenegro, e.t.c We no longer have the Federal Republic Of Yugoslavia ...
We have the case of what used to be the Federal Republic of Germany and the Germany
Democratic Republic(East Germany), what happened? There was West Germany and East
Germany what happened? The Berlin War that separated the two came down on 9 November
1989 and we have one Germany with one Capital city Berlin. How about these other two
countries? There was a country called North and South Yemen? Do they still exist as separate
distinct state? Or we now have one Yemen.(it's Capital City Sana'a).The big Sudan is no longer
there. Do you know before 2012 Sudan was the largest state in Africa followed by D.R.C? Now
D.R.C is the largest after the break away by South Sudan. So South Sudan breaks away, is like..'
are we going to recognize this territory that has broken away from Sudan'. The same thing with
Ethiopia. When it was the time of the emperor Haile Selassie, Lion of Judah he had many titles.
You now African leaders are not Short of titlesand even after Haile Selassie,Mengistu Haile
Mariam comes over through military coup Ethiopia still stayed intact, but the Eritreans said
"No no no..." we want to have our own state. So they secede from Ethiopia in 1993 and the
International Community is like......" are we going to accept Eritrea which is a product of
secession and so on and so forth. You see know Ethiopia is Landlocked as a result of Eritrea
coming up. Do you know that? Just like our brothers in Uganda. It can't you know.. boast of
any beaches e.t.c on the Red Sea. So the International community is left wondering what is

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happening. But what I want you to note is this and I am going to give you this... you see: The
International Community is in as it were a state of constant change. Alright..Is that
true? It is in a state of constant change.
And if you doubt that lemmi tell you......:When the U.N was created in 1945 how many ,member
states did it have? If you look at the Reparation Case you will see the I.C.J referring to the
number of states. It had 50 only. In 2015 how many member states does it have? it has
193.Where has the 143 states come from? Students Answers: They were born ..By who?...Who
was their mother? They emerged......From where?...Under the sea? Where did they emerge
from..? It is not a question of Recognition they emerged from somewhere.Prof.Answer:
While there were those that seceded, like Eritrea from Ethiopia, but there were others that as it
were, were created as a result of the exercise of the right to self
determination(Independence), self-Government, that is what created all those. And when all
those come up... now we are left with the issue of do we recognize these? Are these states? Are
this Governments and so on and so forth..}
Introduction
The international community is in a state of continuous change/ flux.
{Lecturer's Explanation: Even Kenya has changed. We are not what we were in 1963. We have
changed quite a lot. I was old enough to see us getting independence in 1963 and I can confirm
that we are not what we were in 1963. For example we were about 6 million Kenyans now we
are about 40 million.}
New states are created ,existing states disappear and territorial changes take place.
{ Lecturer's Explanation: New states are created(that is those that emerge from colonialism,
from trust territories, e.t.c) existing states disappear(like what happened in the case of Soviet
Union, Federal Republic of Yugoslavia East and West Germany, those one's have disappeared
they are no longer there) and territorial changes take place.{Lecturer's Explanation: What are
the territorial Changes? You have South Sudan breaking away from the bigger Sudan, you have
Eritrea breaking away from Ethiopia, and that creates new territories as a result of territorial
changes. You have in the early 70's for Example: I don't know how many of us know,.. aah.. the
present state of Bangladesh. what was it before 1971-1972?It was East Pakistan. The present
Pakistan was West Pakistan, and you have an article to read on that in your reading list so don't
say that it was part of India. Alright.. The East Pakistanis' exercised their right for Self

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determination and said 'No' "We no longer want to be part of Kalakh, we want to have our own
state and they established their own state}
Moreover, revolutions, uprisings and Coups D’états sweep aside existing governments
and replace them with new regimes. { Explanation: Moreover, revolutions, uprisings
and Coups D’états (Obiter Dictum: Spelling of the word and also note :There is nothing like
Attorney Generals when many it is always Attorneys General or for example Secretaries
General when many not Secretary Generals) sweep aside existing governments and replace
them with new regimes.{ Lecturer's Explanation: I told you that when Riek Machar in South
Sudan kicks out President Salva Kiir now that they have refused to sign a seize fire he will come
in with a new Regime and that of Salva Kiir will no longer be there and then we will be left with
the issue of whether or not to recognize Riek Machar Regime as one in Control of South Sudan.
That's what we are talking about}.
When these changes occur the International community of states is faced with the
choice of whether or not to recognize the new entities that emerge(That is for example the
Stans..that emerge from the former Soviet Union, the Croatian and what a view that emerge
from the former Federal Republic of Yugoslavia) and the new regimes that claim competence
and authority over suchentities.{Lecturer's Explanation: The question to the International
community of states is this: are they going to recognize Idi Amin's Govt., Riek Machar's
Govt. if it takes over from President Silva Kiir Govt. in Juba? are we going to recognize
him(Riek) ?or what are we going to do?}
This is because for the new entity or new regime concerned it must be recognized by the
International community in order to fully operate in the international plane.{Lecturer's
Explanation: You see if the rest of the states do not recognize South Sudan and say" Hey karibu
ndugu yetu or karibu dada yetu" there is no way the International community of statesis
going to interact with South Sudan. Okay .. That is what we are saying.}
The new entity or regime needs the assurance that it will be permitted to hold its place
and rank in the character of an independent legal organism in the International
community of states.For Example: When Uhuru was sworn in the other presidents sent a
congratulatory message to give assurance that he is the head of state.
I want you to note this and it is very important: As a principle,recognition is a mixture
of politics, International law and municipal law.

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{Lecturer's Explanation; Can someone tell me what that means? You see, this is what we are
saying: Entity A, appears in the International scene and that entity A appearing in the
International scene has to be recognized by B, C,D,E,F ..extra. And we are saying the
recognition of entity A, by these other states is a mixture of politics ,I.L and Municipal law.
What do we mean? A student asks about Recognition of Western Sahara? Do you know the
O.A.U goofed & the O.A.U went against the provisions of its own charter in admitting Western
Sahara into membership? This is because if you look at the Charter of the O.A.U, which you can
easily get, the one that was replaced by the constitutive Act of the African Union, membership to
O.A.U was open to sovereign independent African states. In 1984 or even before,.. actually it
was done earlier was Western Sahara a Sovereign independent African state? In 2015 is
Western Sahara a sovereign independent African state? No. Thank you I then rest my case. Let's
go on. If you want to get more I am supervising a dissertation on the International Legal
consequences of the admission of Western Sahara into the membership of the O.A.U now the
African Union . It is very clear that the O.A.U went against its own Charter. Of course the
admission of Western Sahara into the membership of O.A.U, was strategic but as I said the
O.A.U goofed. The Idea was to say look: Morocco, Western Sahara is a state, is a member of the
O.A.U, leave it alone. Don't interfere with its territorial integrity. This is a state and the
membership of O.A.U was based upon, on the same principle of membership of the U.N namely
Equality of states. So the idea was to use that and say" Hey, Morocco get out of Western
Sahara." On the contrary Morocco refused and got out of the O.A.U. Up to know Morocco has
stayed out of the African Union. Saharawi democratic republic Western Sahara was a Spanish
colony until 1975 Spain could not manage the administration as there was a civil war in Spain.
It abandoned Western Sahara. Morocco and Mauritania moved in claiming the territory was
historically part of their territory. The issue ended up at the UN assembly and kept off the others.
UN referred the matter to the ICC for an advisory opinion. The ICC advised that the Morocco
and Mauritania to keep off to allow the Saharawi’s to decide. UN established a UN committee on
a referendum on the future Western Sahara. Morocco decided to export its citizens to Western
Sahara frustrating efforts of UN Gen Assembly. The OAU admitted the Saharawi to its
membership, Morocco pulled out of OAU in protest.
Morocco has frustrated several attempts by the U.N to hold a referendum, so that the Indigenous
people of Western Sahara can express their right of self determination . They decide voluntarily

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whether they want to merge with Morocco or Mauritania or emerge as a sovereign independent
state. The way that Morocco has frustrated this is when in 1975 after the I.C.J advisory opinion,
Morocco literally exported Moroccans to the territory of Western Sahara. That is how it has
ended up frustrating the efforts of the U.N to get independence for Western Sahara because right
now the U.N cannot Register, the indigenous people of Western Sahara as we do not now the
Indigenous people of Western Sahara are. The Moroccans who are now more than the
indigenous people will obviously say "We want to join Morocco" A student asks about the Govt.
in Exile? Answer :There is no Govt. Polisario has never formed a Govt.Polisario is the freedom
on Deliberation Movement which has never had an opportunity to form a Govt. Who is the
president if you say so? Mohammed Adelaziz.There is no such person. Anyway, let's continue
on recognition we will talk about Western Sahara later on. As I said,as a principle, recognition
is a mixture of politics, International law and municipal law.}
When granting or withholding recognition, states are more influenced by political
rather than legal considerations.{Lecturer's Explanation: Let me now explain that and we are
going to see .You see when South Sudan emerges from the bigger Sudan, when Eritrea emerges
from Ethiopia no single state in the community of states is under a duty to recognize South
Sudan. No single state is under a duty to recognize Eritrea. Why? Because is and we are going
to see in a minute is a unilateral discretionary act on the part of the recognizing state. When
state A emerges on the International scene, states B,C,D,E,F are not under any legal duty to
recognize state A. When and if Riek Machar takes over the Govt. in Juba, no single state will be
under a legal duty to recognize his Govt. The Act of Recognition is entirely discretionary,
entirely unilateraland that act as I said will be taken or will be influenced more by political
considerations. It will be "what do we gain" as it were, what do we gain by for example
recognizing Riek Machar Govt. in Juba? As a country does it benefit us recognizing Riek
Machar Govt. in Juba when he has taken over Silva Kiir? Alright. Thus, before that act of
recognition is taken and we are going to see this in detail Eritrea, South Sudan, must have
met International Law indicia for statehood before we recognize them because, we cannot
recognize as a state a non- state entity.
That is why I am telling you and you are not seeing my point that the O.A.U goofed in
recognizing and admitting into membership Western Sahara, when Western Sahara was and is
not a state.With respect to a state ,recognition is the acknowledgement that an entity fulfills the

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criteria of statehood. The criteria of statehood are not municipal law criteria, they are I.L criteria.
So we cannot recognize an entity that is not a state, and an entity becomes a state by virtue of
satisfying the requirement of International Law. Statehood is an International Legal status is
not a municipal law legal status. Example of such requirements are provided for in Article I of
the 1933 Montevideo Convention on Rights and Duties of States which enumerates what
are now widely accepted as characteristics of statehood in international law. The article provides
that the states as a person of international law should possess the following qualification a
permanent population; a defined territory; a government; and Capacity to enter into
relations with other states.
What about Municipal law. How about municipal law? As I said, because the decision to
recognize is discretionally, is unilateral , we are going to ask ourselves: What is our foreign
policy towards E.g Israel,what is our foreign policy towards Palestine and that is entirely a
matter of municipal law. No state outside Kenya can dictate to Kenya the substance and form of
its foreign policy. It is entirely for us to decide. Is it now clear?}
Recognition is a discretionary function, exercised unilaterally ,by the government of a
state acknowledging the existence of another state or government or belligerent
community. {Lecturer's Explanation: There is no right to be recognized and there is no duty to
recognize a state that's why it is discretionary}
Malcolm Shaw says that,“recognition-is a statement by an international legal person as
to the status in international law of another real or alleged international legal
person.”
It is an acknowledgment of the International legal status of the entity in question.
With respect to a state, recognition is the acknowledgment that the entity fulfills the
criteria of statehood. On the other hand, recognition of a government is the
acknowledgment that the regime in question is in effective control of a state.

{Lecturer's Explanation: So if it becomes necessary to acknowledge the Govt. of Riek Machar in

Juba we will be saying look" Kenya is convinced that the Govt. of Riek Machar is in effective
control of South Sudan and it has possibility of permanence, it has the possibility of stability and
Silva Kiir has thrown in the Towel. So we acknowledge Riek Machar Govt.}

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N/B: Although recognition is not a matter governed by lawbut by policy, the act of
recognition produces legal consequences in International Law as well as in Municipal
Law.The act of recognition is not a legal act but a policy act as it is discretionary there is no
legal duty but there are legal criteria that must be fulfilled for the regime that wants to be
recognized.
(exam).

ACTS OF RECOGNITION
In other words we are looking at how is recognition manifested?
What actions must Kenya take to manifest that it has recognized the state of Southern Sudan?
There is no uniform type of acts recognition. {Lecturer's Explanation: One can understand
why there are no uniform acts of recognition. I.L does not say that state B must do a,b,c,d or e,f,g
in order to manifest recognition of entity A, because remember as we said recognition is
unilateral, is discretional, that is why we are saying there is no uniform type of acts of
recognition)
Recognition is a matter of intention and may be express or implied. {Lecturer's
Explanation: Tell me when South Sudan was born in 2012 did Emilio Mwai Mwana wa Kibaki
say anything? Did he announce that today Kenya recognizes the Republic of South Sudan? Was
there any official announcement from state house or even from the Ministry of Foreign Affairs?
Does anyone remember? There wasn't.Right..! Did Yoweri Kakuta Museveni in Entebbe state
house issue a statement saying we recognize the Republic of South Sudan?No. That is why we
are saying that it is a matter of intention, it may be either express or implied}
The act of recognition may be effected;Expressly:by a formal announcement or by a
bilateral treaty of recognition or in certain cases Implicitly/Impliedly/Tacitly: through
any acts indicating an intention to effect recognition. e.g. Exchange of Diplomatic Envoys.

Express manifestation of Recognition:

A formal announcement may take the form of a public statement, a congratulatory
message, on the attainment of Independence or a simple diplomatic note delivered to
the entity which is to be recognized.

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{Lecturer's Explanation: We don't remember Emilio Mwana wa Kibaki sending any
congratulatory message to South Sudan. How about Al Bashir in Khartoum? Did he also just
keep quite all he sent a message? I remember President Al Bashir sending a congratulatory
message congratulating the people of South Sudan on attainment of independence.}
Tacit manifestation of Recognition
Recognition may be implied from the conduct of one state towards another. However
Recognition by implication must be an equivocal and clearly indicate that the
recognizing state has a clear and inescapable intention to do so. Besides, State practice
shows that certain situations such as the conclusion of bilateral treaties and formal
exchange of diplomatic envoys may amount to recognition. {Lecturer's Explanation: So
we may just decide to keep quiet, we don't make a public announcement, a public statement, we
don't send a congratulatory message but the moment South Sudan emerges we as it were extend
to it our willingness to have diplomatic relations with them that will be a form of recognition or
we have South emerging and we say "Hey South Sudan before you emerged we were having
problems with the bigger Sudan in Khartoum over the Ilemi triangle (it is a region at North-
western corner of Lake Turkana. It is a disputed area claimed by both Kenya and South Sudan
and borders Ethiopia.) can we agree over the Ilemi triangle and we see which state has as it were
Sovereign over that triangle". And Salva Kiir says "alright no problem let us sit together and let
us sign an agreement that Ilemi Triangle belongs to Kenya or belongs to South Sudan whichever
way it goes " That would mean that we have recognized South Sudan because as a state we
cannot sign a bilateral agreement with non-state entity .If Kenya concludes a bilateral treaty
with Southern Sudan then it impliedly recognizes southern Sudan as a state.}
However, Recognition cannot be implied from certain other situations such as being
parties to multilateral treaties or attending international conferencesin which the
unrecognized entity participates.
{Lecturer's Explanation: You see this is what we are saying: Firstly :Kenya does not recognize
entity A as a state, but that entity A is a party to a multilateral treaty like the U.N Convention
on Biological Diversityor that entity A is a party to the U.N Framework Convention on Climate
Change to which Kenya is also a party , the fact that, that entity A is a party to the same
multilateral treaty as Kenya does not mean that Kenya recognizes that Entity A.Secondly:
Kenya does not recognize entity A, but entity A attends the United Nations Diplomatic

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Conference of Plenipotentiaries on the establishment of an International Criminal Court to
negotiate and adopt the Rome statute establishing the International Criminal Court which
Kenya is in attendance, that does not mean that because Kenya is sitting around the same
negotiation Conference Table, with that particular entity A, Kenya has recognized that entity A.
That is what we are saying. Alright.}
Now I want you to listen to this and tell me whether this is what could have happened
in the case of Western Sahara. I want us then to note this: An Entity may also be
recognized collectively .{Lecturer's Explanation: I hope you are seeing the distinction
hitherto what we have been talking about has been unilateral discretionary act of recognition by
single state or individual state. So we are now saying that anEntity may also be recognized
collectively. How and when can that happen?
An entity may also be recognized collectively.This may arise in two contexts:
1) The first being in situations where recognition is accorded collectively by a group of
states.For example by a peace treaty as illustrated by the 1919 Treaty of
Versailles(check the treaty) which recognized new states emerging after the end of
World War I. (remember there were certain entities that emerged after World War I. Those
were entities that were recognized collectively by a group of states under that treaty.)
2) The second situation is when an entity is admitted as a new number of the U.N.
Article 4(1) of the U.N Charter sets out conditions and procedure for admission and it
requires that a new state must be peace loving and must be ready to accept the
obligations deriving from the Charter and must be able and willing to carry out those
obligations.{Lecturer's Explanation: Article 4(1) of the UN charter explicitly states:
Membership in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the Organization, are able
and willing to carry out these obligations. Can you see the conditions that Article 4(1) sets out
for admission into membership of the U.N?
So the applicant must be a state(Question of recognition arises), must be peace loving, must
accept the obligations contained in the Charter, and must be able and willing to carry
out those obligations. Those are the conditions. Alright...! So you cannot get.. you cannot
have a situation where a non-state entity is admitted into the membership of the U.N.

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Can you? Just from that paragraph I of Article 4 of the Charter... So you cannot admit a non-
state entity into membership of the U.N.}
Article 4(2) of the charter states that:The admission of any such state to membership in the
United Nations will be effected by a decision of the General Assembly upon the
recommendation of the Security Council. {Lecturer's Explanation: So we start from the
Security Council. The Security Council must recommend to the General Assembly and say
"Hey.. admit state A into membership of the U.N". But of course and I think I have told you this
before,.. The General Assembly is not bound by the recommendation of the security council. This
is because still, that admission has to be decided upon by what majority vote? Does Article 4(2)
of the Charter say..? No Find out. After looking at the Charter I found out Article 18 of the
Charter states that:Decisions of the General Assembly on important questions shall be made
by a two-thirds majority of the members present and voting.These questions shall include:
recommendations with respect to the maintenance of international peace and security, the
election of the non-permanent members of the Security Council, the election of the members of
the Economic and Social Council, the election of members of the Trustee- ship Council in
accordance with paragraph l(c) of Article 86, the admission of new Members to the United
Nations, the suspension of the rights and privileges of membership, the expulsion of Members,
questions relating to the operation of the trusteeship system, and budgetary questions.}

Under Article 4 paragraph (1) requires that an applicant for admission must be a state
that is peace loving, must be ready to accept the obligations deriving from the charter
and must be able and willing to a carry out those obligations .

Under Article 4 (2) of the Charter, the absolute masters of the admission procedure are
the Security Council and the General Assembly.

The Security Council will verify whether the conditions laid down in Article. 4 (1) of
the Charterare fulfilled by the applying entity and at the recommendation of the
Security Council, the General Assembly will adopt the final decision[ adopted by :two-
thirds majority of the members present and voting(Article 18 of the Charter ) Example: 2011’s
attempt by Mahmoud Abass to get Palestine as an entity] {Lecturer's Explanation: And then of
course, once the General Assembly, has adopted the final decision to admit Entity A into
membership of the U.N all the member states of the U.N will be bound by that decision.
This means that they cannot turn around and say "Hey.. we do not recognize you as Entity
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A as a state" The question shall be then: How comes it was admitted into membership of the
U.N if it was not a state? That is why and I think I have told you the Israeli neighbors.. the Arab
neighbors of Israel cannottreat Israel as a non-state entity..., Arab states do not recognize Israel
as a state but they cannot treat Israel as a non state as it is against the UN charter and they will
be in violation of their obligations,even Iran. .. You now..... I don't know if you remember
Mahmoud Ahmadinejad( 6th President of Iran from 2005 to 2013) vowing to wipe out Israel out
of the face of the World in year 2006 at the International Conference to review the global vision
of the Holocaust .He stated" The Zionist Regime will be wiped out soon the same way the Soviet
Union was and humanity will achieve freedom"

On Israel's 60th birthday, Ahmadinejad said: "Those who think they can revive the stinking
corpse of the usurping and fake Israeli regime by throwing a birthday party are seriously
mistaken. Today the reason for the Zionist regime's existence is questioned, and this regime is on
its way to annihilation."

Iran does not recognize Israel but it cannot dare touch the territory of Israel, because Israel is a
state and under the principles and purpose of the U.N there is Sovereign Equality(Article 2(1) of
the charter which states "The Organization is based on the principle of the sovereign equality of
all its Member"). So Iran cannot temper with the territorial integrity, the political
independence, and sovereignty of Israel. This is because Israel is a member of the U.N and it was
voted into as it were into membership of the U.N because it was a state. Okay.... Student
Question: Professor , in that Understanding: Where does the Resolution Number 43/177 of15th
December 1988 which the U.N recognized Palestine as a state.
Where does it leave us in the light of what you have just said? Professor: What does it say? The
U.N by that resolution recognized the new state of Palestine and accordedit observer status."
But they are not saying what we are saying here... and if I may remind you two years ago
Mahmoud Abbas President of Palestine was in Newyork lobbing for the admission of Palestine
into the membership of the U.N. The Son of the Kenyan Father said the U.S was going to veto.
Which means there will have, come no recommendation from the Security Council for the
admission of Palestine into membership of the U.N. Now that does not mean Palestine is not
a state, it may be a state but according to Barrack Obama's Judgment and according to U.S
foreign policy Palestine is not peace loving. And that what they have said that Palestine is not
Peace Loving. There is Islamist Palestine movement Hamas which fights and there is other

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such groups.Until and I can bet on this one until Palestine and Israel sign a peace accord and
say Yes "There is mutual recognition and all that, you will not have Palestine into membership
of the U.N. I can assure you of that. Remember again that the resolution of the General
Assembly........Does the resolution of the General Assembly create a state?.. Remember me
referring youto Ian Brownely discussion of "States In Statu Nascendi" Read that.. Why is it
that the Security Council must make recommendation to the General Assembly? It is simply
this: If you look at the purposes of the U.N or the functions of the U.N .. What is the primary
function? It is maintenance of International Peace and Security(Article 1(1) of the Charter..
Right! That is the main purpose why the U.N was created. Can you look at Article 24 of the
Charter which states that:In order to ensure prompt and effective action by the United
Nations, its Members confer on the Security Council primary responsibility for the
maintenance of international peace and security, and agree that in carrying out its
duties under this responsibility the Security Council acts on their behalf. We say we are
creating the United Nation Organization for purposes inter-alia of maintenance of peace and
security. Then we create what are called principle Organs of the U.N. and one of the principle
Organ of the U.N is theSecurity council .
Then we say "Security Council your primary mandate is maintenance of International Peace
and Security" alright.. Can you now see why the Security Council has to say yes..! And Article
4(1)of the U.N Charter talking of peace loving and it states that : "Membership in the United
Nations is open to all other peace-loving states......
How are you going to say that this particular entity or state is peace loving? when its actions or
activities pose a threat to International peace and security.. Question 1: Why does the General
Assembly has to have or get a recommendation from the Security Council yet it is an assembly
of many states or all states composing or members of the U.N, while the Security Council is
composed of a few countries and to make matters worse, one Country which is a permanent
member of the Security Council like the U.S, U.K, e.t.c can veto hence stalls the whole decision
of the Security Council? Why can't the General Assembly be of the view that it should have
equal powers or even do what it does without the recommendation of the U.N?Answer: Aah.. I
think it is Article 12 which answers your question can you look at Article 12. What does it
say..Article 12 (1) of the Charterstates;. While the Security Council is exercising in respect
of any dispute or situation the functions assigned to it in the present Charter, the

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General Assembly shall not make any recommendation with regard to that dispute or
situation unless the Security Council so requests. Have I answered your question?
Question 2: It seems like the Security Council is more powerful than the General Assembly or it
seems like Security Council overrides General Assembly..e.g it must make a recommendation for
a country to be admitted to the U.N & in absentia of such recommendation the General assembly
can't admit a country into membership of the U.N. Another example is the one under Article 12
(1) above.?Answer : I wish it was possible for me to give you a tutorial on the Law of
International Organizations you would understand. But I would defer that and advice to work
hard and so that you come and do L.L.M so that I teach you that. But the point is this, that: The
way the U.N system was structured and you need what is called the Trevor Preparator of the
U.N Charter. You will see that the states that attended various conferences leading up to the
June 1945 San Francisco Conference when the Charter was adopted , they were very clear that
there must be a Central Organ comprising the Big powers upon whom the maintenance or the
responsibility of the maintenance of International peace and Security would rest. The big
powers were who? The victors of the Second World War. That is the U.S, the U.K, the Soviet
Union,and China and the four came together and invited France to join them and I think it was
because France was Neutral, during the Second World War. So they, invited France to join them
to form the big Five. The permanent five with the veto power and the Security Council is it were
given a blank Chequeunder the Charter.
Look at Article 39 of the U.N Charter which states that :The Security Council shall
determine the existence of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what measures shall be taken
in accordance with Articles 41 and 42, to maintain or restore international peace and
security. The Security Council was given a blank Cheque todetermine situations that pose
threat to International Peace and Security, situations that amount to breach of International
peace and Security and what actions should be taken to restore International peace and Security.
Alright... Have you looked at Article 39 of the Charter....The Charter does not say what factors
the Security Council shall take into account, to make that decision or that determination. It is
open to the Security Council. You may like it, you may dislike it but that the way it is. A lot of
states particularly you now.. the developing country states have argued that the Security
Council is not democratic.. blah blah blah... Initially it had 11 members. 5 Permanent 10 non-

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permanent It was expanded I think in 1965 I forget which amendment of the Charter.. 215.
Five permanent ,ten none-permanent. In the early 2000 Brazil says we must be a member of the
Security Council. We rule or are dominant in Latin America.Nigeria and the Republic of South
Africa says we must be members of the Security Council, permanent members to represent
Africa. Japan says we are the Economic Power House of Asia, we must be permanent members of
the Security Council. Germany after the unification ,says "look we are the power house of
Central Europe", we must sit on the Security Counciland the U.S and the U.K and Russia and
China says fine welcome so long as you do not have power to Veto. Right.. and that debate has
now fizzled out. Because.. Why? To have that kind of structure, that kind of set up of the
Security Council requires amendment of the Charter. And look at Articles 108 and I believe
Article 109 of the U.N Charter and see what it requires to amend the Charter. See this:
To amend the Charter requires not only just the vote of the General Assembly but the concurrent
of the permanent five(U.S, U.K, Russia, China) . Which one of the Permanent Five would Say
"Alright amend the Charter so that you take away some of the powers I have. I have
got too many powers or too much powers, amend the charter and take away some" So
when you hear politicians of Moi Avenue, talking about the democratization of the Security
council and what a view, tell them you are just breathing hot air. Alright... So can we go back to
recognition?
Article 108 states that:Amendments to the present Charter shall come into force for all
Members of the United Nations when they have been adopted by a vote of two thirds of the
members of the General Assembly and ratified in accordance with their respective constitutional
processes by two thirds of the Members of the United Nations, including all the permanent
members of the Security Council.:Article 109(1). A General Conference of the Members of the
United Nations for the purpose of reviewing the present Charter may be held at a date and place
to be fixed by a two-thirds vote of the members of the General Assembly and by a vote of any
seven members of the Security Council. Each Member of the United Nations shall have one vote
in the conference.(2). Any alteration of the present Charter recommended by a two-thirds vote of
the conference shall take effect when ratified in accordance with their respective constitutional
processes by two thirds of the Members of the United Nations including all the permanent
members of the Security Council. . (3). If such a conference has not been held before the tenth
annual session of the General Assembly following the coming into force of the present Charter,

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the proposal to call such a conference shall be placed on the agenda of that session of the General
Assembly, and the conference shall be held if so decided by a majority vote of the members of the
General Assembly and by a vote of any seven members of the Security Council.
Question 3: Palestine Statehood question: The lecturer says: Of course we are all
aware ,Palestine strictly speaking qualifies for Statehood. Practically speaking Palestine qualifies
for statehood. It has a permanent population, it has a defined territory, although West Bank and
Gaza strip are separated but that geographical separation as we saw does not matter, it
hasgovernment Mahammoud Abbas is in charge of it, maybe he has a Cabinet and it has the
ability or the capacity to enter into relations with other states, with other International Law
persons, but this is the politics that am talking about.
You now ,let me tell you, you guys if you do not now: There are more Jewish People out of Israel
than in Israel itself and the Jewish lobby outside Israel is so strong that you cannot, you
cannot ..you cannot ignore it. There is no way and this is why I told you to always appreciate
International Politics and as you appreciate International politics appreciate, national strategic
interest, particularly those of the big powers. There is no way Obama would have gotten back
into white house for a second term or even the first term, if he did not have the support of the
Jewish lobby in the U.S, absolutely no way.
And he cannot do anything that "injures " the interest of Israel. He is gone. Was it early this
week?... How many of you listened Benjamin Netanyahu.. addressing the Congress..right. How
many of you? He was lambasting Obama for getting into negotiation with Iran..Iran that has
vowed to wipe out Israel from the map of the World . You know how do you get a foreign
visiting head of state coming here addressing the National Assembly and lambasting Uhuru
Kenyatta?Do you know there are more Jews in U.K than in Israel itself? Do you know there are
more Jews in Argentina than in Israel itself? And am talking about things that I know as facts. I
have been in Israel. On Monday I am going to Israel. I know. I've been into the U.S and I know
how strong the Jewish lobby in the U.S is. So this is the politics we are talking about. There is no
way Obama is going to say admit Palestine into the membership of the U.N. Like every other
Politician he wants to serve his full term and retire with honors. Isn't that what every politician
wants? Yah.. He wants to serve his full term and retire with all the honours and all the benefits
of a U.S president who has served his full two terms. Under the Constitution he can't serve more
than two terms. So everybody is interested in that and what does that mean? it is all internal

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politics. This is something you should appreciate. If I was teaching you International Relations,
that is what I would emphasize more than anything else. Because it is the strategic Interest
particularly of the Big Powers that determine International Relations. Why did we for example if
you do not know and this is what we have been doing for years of end... , why did we stop
receiving crude oil from Iran, when the U.N Security Council imposed economic Sanctions on
Iran, because of this nuclear business, can you tell me why?Let's move on..

RECOGNITION OF GOVERNMENTS
Recognition of governments is an indication of the willingness to accord the
government in question all the international rights and privileges normally accorded to
those governments that are recognized.
Recognition of government implicitly means recognition of state because there cannot
be interstate relations without intergovernmental relations. {Lecturer's Explanation: So
when we recognize, the Government of Riek Machar, in Juba, what we are saying is that we are
recognizing South Sudan. We are ready and willing and prepared to enter into inter-state
relations with South Sudan. You are aware, aren't you, now as students of I.L, you are aware,
that the concept of a state is an abstract(theoretical /exists as just an idea but not having a
physical or concrete existence). Is that true? Kenya will not move to interact with other states of
the world. Kenya will have to rely on state officials and Govt. officials. That is why we are saying
when we recognize the Govt. of Riek Machar ,in Juba we are saying we are recognizing South
Sudan and we are ready and willing to Interact with South Sudan. The states do not Interact
it's individuals who Interact as representative of states and representatives of Governments}

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Recognition of governments is however different from that of states in that non
recognition of government does not mean non recognition of state. Why are we
saying that? This is the reason :The granting or refusal of recognition of a government
has nothing to do with the recognition of the state itself. If a foreign state refuses the
recognition of a change in the form of government of an old/existing state this does not
meanthat the state loses its status as an international law person. The state is
perpetual and survivesthe change in the form of its government.
{Lecturer's Explanation: Lemmi Explain by way of illustration:I want to give you two
examples: In 1971 when Idi Amin took overDoctor Milton Obotegovernment in Uganda
Nyerere as I have indicated refused to recognize Idi Amin's Government, refused to sit... and
Nyerere was a very principled man by the way....refused to sit at any round table or at all with
Idi Amin. At no point(emphasizes),..at nopoint did Nyerere doubt the statehood of
Uganda.He simply said he was not going to recognize Idi Amin, he was not going to sit with
him, he was not going to act with him but he never doubted the statehood of Uganda.
That is what we are saying. There was a change in government from a democratically elected
Doctor Milton Obote's government, to a military coup Govt. ran by supreme military council
or whatever you call it. And Nyerere says we are not going to recognize that Govt., we are not
going to ran any interactions with that government. That did not mean he did not recognize
Uganda. Uganda as a state was there.. In our backyard here for more than 20 years , Somalia has
not had a stable permanent Government, that has been recognized by the International
Community. True or not true? Answer: True. Nobody..nobody, anywhere in the world has
doubted the statehood of Somalia. Kenya, could not and Kenya cannot dare, touch an inch of
Somali territory. Ethiopia could notand cannot.., Djibouti could not and cannot.. Coz the
moment you do that you are in violation of International Law. Government's come and go. If
tomorrow for Example: If tomorrow we change our Constitution, and say we are going to have
Uhuru Muigai mwana wa Kenyatta, as our life president, it is the life president, as head of state
as head of government, that means he has also powers to do everything until he sleeps never to
wake up. Yoweri Museveni will say.."Hey.. we are not recognizing that government."But there
is no way he can say" we are not recognizing Kenya." Jakaya mwana wa Kikwete in Tanzania
will say" we are not recognizing that government", but there is no way he can say we are not

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recognizing Kenya. That is the point that we are making here. Why am I saying that? I want to
tell you this; }
Non recognition of government may mean either that :
1. The government in power is not a government in terms of independence and
effectiveness. {Lecturer's Explanation: Do you remember as discussing about these
Bantustans in South Africa? You see all those Bantustans that were established by the
former apartheid regime in South Africa had Government's put in place by the regime. So
those governments were not independent. Those Government's were not effective because
they were there to serve the interests of the apartheid regime and nobody recognized those
governments leave alone even the Bantustans themselves, nobody recognized them that is
what we are saying..}.
2. The foreign state is unwilling to enter into diplomatic relations to that government
because it is undemocratic.
3. The entity withholding recognition thinks that the government in power is illegal.
{ Lecturer's Explanation: Lemmi, update you on this issue of recognition of
Governmentsby talking about two issues: One is this that; Contemporary state practice
does not recognize govt.'s. We are no longer recognizing Govt.'s. You know why? Even
countries like the U.S, the U.K and those other big powers are no longer recognizing
governments. Why? Because the form or nature of govt. is now a matter within the Internal
affairs of the individual state. That is why I told you if we decide tomorrow to amend our
Constitution, and have Kenya a one party state, we go back to pre-1992 era, there nobody
outside Kenya who will come and say "Hey Kenya, why are you doing that?" They may
raise issues but there is no way they will come and tell us "No" we don't accept that thing.
Who are they to tell us ? If tomorrow we decide we are goingto have a life president or we are
going to do what Museveni wants to do in Uganda, have limitless presidency, that is up to
us. Nobody will come up and say hey" Why are you having limitless presidency there must
be a limit. We say "no..no ..no" We don't want a limit we are satisfied ,we are happy, with
what Museveni is doing for us na tunataka aendelee hivo hivo. You see what am saying.
That is entirely for us to decide . That is one thing am telling you about state practice
because right now, major countries, most states are not recognizing foreign governments.
Once we have recognized a state, we will do business with whoever they bring up as their

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state or governmental representative. You are aware,.. this is the statement I wanted to point
out: You are aware that under the Constitutive Act of African union, the African union will
suspend, not from membership, the African union will suspend from participation in its
activities of a government that has come into power through unconstitutional means. You
are aware? And that decision is not for individual states, that decision is taken at the
African Union level. We can and we have all the rights, as Kenya to interact.. IsMarc
Ravalomana still the head of Govt. in Madagascar? NO. I don't know what happened but we
had all the rights to interact with him as a head of state and head of Govt. in Madagascar.
We had and we have all the rights to interact with say Riek Machar if he becomes the next
head of Government in Juba. The O.A.U or rather the African Union may say we are
suspending we are suspending the government of Juba from participating in the activities of
African Union, but it will not tell us don't interact with that Govt.Question : Am
disagreeing with you on the issue of states having the liberty to govern their internal
matters. A country is not on its own an Island.
It interacts with other states. We cannot have a government in power which does not respect
Human rights? Answer : Listen just hold there.... That a different aspect that you are
raising . This is because the issue you are raising is the issue ofstate sovereignty and we now
and we are going to see that state sovereignty is not absolute. States Sovereignty
comes with now what is called responsibility to protect . If the state through its own
governmental machinery is not protecting its citizens, is violating the human rights,
CERTAINLY the International Community will intervene. Okay..! Do you now agree with
me? YES.
Student :Question : What about what is happening in Yemen where there are two
governments?Prof. Answer: Which is the legitimate government? Student: Both of them
are claiming to be legitimate. Prof. Answer: You see what normally happens is this, where
you have a situationof a govt. being forced into exile, by hostile powers,Say for example
President Salva Kiir government is forced into exile by Riek Machar, the issue that will
arise, at the International level will be which government is in effective control of the
territory? And at International Level if we have an International Conference and you have
two delegations from Yemen, the question will be for the Credentials committee to decide
who are the genuine representatives. This is because you will see that at an International

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Conference, just like in the International Organization there is what is called the credentials
committee . It will have to scrutinize the credentials carried by these delegations and these
conflicting delegation and then say between the two of you this is the legitimate
representative or govt. So in a situation like that one they are still fighting so we do not
know who is in control. Who is in effective control? Who is issuing whatever respective
orders and so on and so forth? To whom is the military as it were for lack of a better word
loyal and so on and so forth. So we take into account as it were what is happening on the
ground, and on the basis of what is happening on the ground then we decide this, this. We
had a situation like that in Cambodia after Vietnam war and the U.N General Assembly was
like how do we determine the true representative delegation? They gave the matter to the
credentials Committee and the credential committee scrutinized everything and said between
these two competing delegations this is the delegation.Okay..
Question: There might be certain parameters or certain issues that a state must obey or
some regulations , should the state fail to obey those accepted International regulations like
Human rights e.t.c , does it qualify for recognition?Prof Answer: You see, when does the
issue of recognition arise? I think that's where we begin. We are talking here of a situation
where there is change in the existing regime, there is as it were a change in the legal status
of the entity as a state, and because of that change the issue of recognition comes. Do we
recognize the change and the consequences brought about by the change. Now you have a
situation where there is a government in power. It is in full control ,effective control of the
territory, it seems stable or it is stable, it is likely to be permanent after it has you now taken
over, power most likely it will be permanent and so on and so forth and we extend
recognition to it and say for example: "Yes we recognize the govt. of Riek Machar in Juba",
Five ,six years down the line the Govt. of Riek Machar starts violating human rights are we
going to withdraw recognition? We are not going to withdraw recognition . Right.. we have
already recognized it is the Govt. in power. But as I said the govt. in power must and is
expected to comply with rules of I.L. So if it violates rules of I.L, the issue of what I said
responsibility to protect comes in. We cannot allow the Govt. in power to violate Human
Rights, of its own people and we, you now turn a blind eye as it were to it. You see what
happened during the Arabs uprising of 2012 . Why are we concerned about what is
happening in South Sudan? For your information some people in South Sudan have already

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 been indicted by the I.C.C. The I.C.C has issued warrants of arrest because what is
happening between the forces Loyal to President Salva Kiir andforces Loyal to Riek Machar
amounts to International Crimes. Have I answered your Question? Yes .
Student question:Where do we putPuntland in Somalia which has claimed autonomousor
question of recognition ofPuntland(which had declared itself autonomous in August 1998)
yet it is in Somalia?Prof.Answer: Nobody knows aboutPuntland it has not been recognized
by anybody. As far as the International community is concerned , we now a unitary state or
we recognize a state called The Socialist Democratic Republic Of Somalia. That is what we
know we don't know of any country called Puntland. Fortunately or unfortunately
Puntland it not fighting to secede. But they are just saying look" we have decided to be in
peace leave as alone. Don't touch us". But as far as the International Community is
concerned we recognize theSocialist Democratic Republic Of Somalia as one entity. Even
when you go to the U.N General Assembly, their sit is there. Their sit is still there it's just
that when we have the Sessions of the General Assembly for quite a long time we have not
had any delegation from Somalia. Their ten chairs are there. Do you know every member
state of the U.N is entitled to attend the General Assembly with ten delegates. So their ten
chairs are there. Okay...

THE POLITICS AND FUNCTIONS OF RECOGNITION

Whereas there is no right or duty under International Law for an entity or government
to be recognized or to recognize, the political act of recognition produces legal
consequences.{Lecturer's Explanation: Remember we started off by saying that recognition is
a discretionary act, recognition is a unilateral act, and recognition is a political act. Then we
went on to say , the moment entity A emerges on the International scene it cannot turn around
and say" You guys, recognize us because we have a right to be recognized." There is nothing like
that. Kenya cannot be told "Hey, Kenya you are violating your International obligation to
recognize entityA. Why are you not recognizing it." This is because we are not under duty to
recognize any entity. It is all, discretionary, it is all unilateral ,it is all political; depending on
what is there for us. It just like, when we establish diplomatic relations everything depends on
what are we going to gain mutually. You don't just establish diplomatic relations pay money to
maintain a mission, in those foreign countries when you are not benefiting from it. There are so

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 many countries that we recognize but we do not have diplomatic relations with them. Why?
Because, we do not see anything of mutual interest. It is the same thing here that there is no
right for an entity to be recognized and there is no duty on the International community to
recognize that entity but the moment for example Kenya says we are recognizing South Sudan
that produces legal consequences.If an entity fulfills the criteria it cannot demand recognition
from Kenya or any other state. If a government is in power and ex authority it cannot demand
recognition. It is an act of policy. The moment Kenya decides we recognize a state it produces
legal consequences..But before we look at the legal consequences that act produces I want us to
note this....}
The question that arises however, is whether the decision to grant or withhold
recognition is based on political or legal factors. {Lecturer's Explanation: I hope you are
seeing the difference. In other words what we are saying is: What, guides so to speak that
unilateral, discretionary decision on the part of Kenya to recognize entity A. Is Kenya guided by
legal factorsor is itguided by political considerations, before it exercises as it were it exercises
that discretionally power? Is it guided by legal or political factors?}From state practice it is
clear that the political act of recognition is based on legal factors. Why are we saying
that. There are a number of reasons:
 In the First place recognition cannot be granted unless and until in the appropriate
legal indicia are met( legal criteria is met.)
In the case of a state there must be permanent population,a defined territory, an
effective and independent government and capacity to enter into interstate relations.
{Lecturer's Explanation: Does that ring a bell? So we are not going to recognize an entity that
is not a state. This is because this are the traditional legal indicia of statehood. So an entity that
does not have permanent population,does not have a defined territory, does not have an
effective and independent government and does not have the capacity to enter into
interstate relationsthat entity is not a state, hence we cannot recognize it, that is what we are
saying. That is why earlier on I was telling you that the O.A.U goofed in admitting Western
Sahara into membership. This is because Western Sahara was not and is not a sovereign
independent African state. Okay. Recognition will be premature like in the case of Biafra in
Nigeria. Biafra had not met the legal criteria of state hood.}

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The traditional indicia as regards to government are effectiveness with a possibility of
permanence and durability so that there is no premature recognition particularly in
cases of revolutionary regimes. {Lecturer's Explanation: So we want to see is Riek Machar
Govt. going to be effective in Juba. Is Riek Machar going to be permanent or likely to be
permanent, is it likely to be durable because if today Riek Machar kicks President Salva Kiir
out of Juba and he declares himself the President of South Sudan and two weeks down the line
Salva Kiir has regrouped his troops and rolls into Juba and kicks out Riek Machar, we cannot
afford to say alright we now recognize Salva Kiir , we now recognize Riek Machar we now
recognize Salva Kiir, we now recognize Riek Machar...we now.... we can't afford to do that. That
is what we are saying.}
There is a case on your reading list that illustrates effectiveness and durability.I want
you then to note: This is shown by:
The Tinoco Arbitration(Great Britain vs. Costa Rica) (1923) I RIAA
This is illustrated in this case where the Sole Arbitrator, Chief Justice Taft of the U.S.A
held that the fact of non-recognition of the Tinoko Government by the U.K did not
preclude the claim by the U.K on behalf of its Nationals. In his opinion, non-recognition
was evidence ,perhaps strong evidence that the entity had not yet attained the alleged
status in International Law but the ultimate test was a factual one based on
Internationally accepted criteria.Accordingly if the recognized entity was
effective(remember us talking about effectiveness) it could still be the object of
International claims and was bound by the duties imposed by International Law.
{Lecturer's Explanation: It's William Taft saying look "was the regime in effective control of
Costa Rica. If the regime was in effective control of Costa Rica, then whether or not it was
recognized it had all the rights and duties under International Law.
A summary of the what happened:
In 1917 , the government of Costa Rica( Costa Rica Is In Central America) was overthrown
by Frederico Tinoco who assumed power called an election and established a new
Constitution in June 1917. In 1919Tinoko retired and left the country.(You see for two
years Tinoko was in effective control of Costa Rica. Hakuwa anatingizika na hakuwa na wasi
wasi. Hakuwa anatingizika na mtu yoyote. He was in full and effective control of the territory of
Costa Rica until 1919 when he retired and left the country)When he left the Country his

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government fell . In 1922 they restored Costa-Rican Government passed a law
invalidating all contracts between the executive power and private persons made with
or without the approval of the legislative power during the period of the Tinoko
Government. ( So what we are being told here is that during those two years when the Tinoko
was in power he concluded contracts with certain Corporations, certain private individuals.
Imagine this; Emilio Mwai Mwana Wa Kibaki is in power.
His Govt. is in full control of the territory of Kenya and for the two years he is in power his govt.
is in full control of the territory of Kenya he concludes agreements with corporations, with
individuals, China Wu Yi being one at it for example China Road and bridge Corporation. So
Emilio Mwai mwana wa Kibaki is in control and his govt. concludes those contracts. Though,
some of those contracts are concluded with nationals of foreign govt.'s which have not
recognized Emilio Mwai mwana wa Kibaki govt. which is effective control of Kenya. So Emilio
retires and although we have built a house for him in Muiga he doesn't go to Muiga, he decides
to stay in Muthaiga, you now to continue sampling the good life of Nairobi . Why go to the rural
area? Let me continue sampling the good life of Nairobi, ama namna gani? So he retires.
Now ,when he retires and Uhuru Muigai mwana wa Kenyatta comes up, he decides to pass a
law that annuls all the contracts that were entered into by the govt. of Emilio Mwai mwana wa
Kibaki. That is what is happening here. During the two years that Tinoko was in power ,in
control he concluded these contracts. He goes and the new govt. decides to invalidate , to pass a
law annulling those contracts) The Tinoko govt. had granted a concession to the Central
Costa Rica Petroleum Company and was indebted to the Royal Bank of Canada both of
them British Corporations. Under the new law both those obligations were
abrogated.Great Britain which had never recognized the Tinoko Govt. claimed on
behalf of these corporations and the matter was referred to Arbitration.(You see what is
happening here; I've told you and I hope you remember this. You see a foreign national injured
by the actions of the Govt. of Kenya and being unable to get as it were satisfaction of his or her
claims has the right to go back to his or her Country of Nationality, to the Country of
Nationality , to espouse his or her claims on his or her behalf and that is what is happening here.
The Royal Bank of Canada, at that time Canada was also a British colony, so Britain claims on
behalf of these two Canadians Corporations.... right. So, they decide then to take the matter to
arbitration but remember although Britain is claiming on behalf of these two corporations it had

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 never recognized the govt. of Tinoko and that in fact was one of the defences that the Costa Rican
Govt. raises. It says "Hey hey.. Britain you never recognized the Govt. of Tinoko that was
entering into these contracts. So you are estopped from claiming on behalf of your nationals.
That is the issue that is coming and the question that we are asking here is that : Is recognition
important or what is important is effective control of the territory by the Govt.?)
The Arbitrator in his award discussed the question of recognition in the light of the
objection by Costa-Rica that Great Britain by a failure to recognize the Tinoko Govt. was
estopped from arguing claims of her subjects dependent upon the acts and contracts of
the Tinoko Govt.The Arbitrator held that the fact the U.K had declined to recognize
the new regime was irrelevant in deciding the De facto existence of the Tinoko
Government. The Arbitrator decided that since the Tinoko Administration was in
effective control of Costa Rica it was the valid Govt. irrespective of the fact that the
U.K together with other states had not recognized it.(you can see the arbitrator here
putting the emphasis on effective control of the territory and saying that a regime that is in
effective control of the territory has all the powers to engage into relations with other persons
and when it does that even succeeding govt. is bound by those relations .Okay... By the way
Costa Rica is the only state in the whole of the World that does not have a military. I've been
there.In the entire world Costa Rica is the only state without a military since 1949 and has
applied all the resources in education and health. Life expectancy is about 80 and a 94 literacy
rates. The Vatican has a military.}We started by saying, in this first point that the entity must
meet all the legal criteria, legal indicia of statehood. The entity must be a state before the
decision to recognize it is taken and the in the case of a govt. it must have effective control of the
territory ,it must be permanent and it must be stable.
 Secondlyrecognition is based on legal factors because it brings about formal legal
relations between the recognizing and the recognized state or government. It may give
rise to the establishment of diplomatic relations or the conclusion of bilateral treaties.
{Lecturer's Explanation: So when we recognize a country that, as it were gives us then the
opportunity or the consequence to establish diplomatic relations or conclude bilateral treaties
with that Government or that state}
However, in extreme situations of strategic or political considerations recognition may
be granted or withheld on the basis of political factors.

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 For instance, the decision of the United Nations not to grant recognition to the Ian smith
regime in Southern Rhodesia following the unilateral declaration of Independence in
November 1965 was political based on the fact that the policy of that regime was
repugnant to the purposes and principles of the United Nations.
{Lecturer's Explanation: This is coming just shortly after the U.N had adopted the Seminal
Resolution on the ground of independence to colonial and non-self Governing territories and
here is a situation where you have the U.N as it were advocating for right of self
determination, majority and what a view and then Ian Smith comes up and as it were installs a
white minority regime in Rhodesia. And then of course as you may be aware, or as you may be
aware for those of You who did not drop History, the Ian Smith Regime was in effective Control
of the territory of the present day Zimbabwe until December 1980 when uncle Bob Mugabe
became the first democratically elected president of Independent Zimbabwe. Do you now that?
So Ian Smith was in full control, ..effective from November 1965 to December 1980, a whole 15
years. But the U.N says "No, no no" we are not going to recognize that regime because, the
white minority racist regime policy, was against purposes and principles of the U.N. That isas it
were, whatwe meanwhen we talk of the politics of Recognition} I want you to note this about the
functions:
There are two basic functions of recognition.
1. Recognition may be employed for the purpose of acknowledging theexistence of a new
subject of International Law or its organs.{ Lecturer's Explanation; I hope you are getting
this so thatwhen we get there you do not make the mistake that is made: The mistake usually
made by students and which some of us are likely to make is that recognition is creative of an
entity. Recognition does not Create it only acknowledges a pre-existing situation , a pre-existing
state of affairs. It doesn't create a different state of affairs. And above all along we have been
getting the fact of acknowledging.... acknowledging...acknowledging... alright I hope it's loud
and clear...!
2. Recognition confers on the recognized entity the right to have its territorial claims
recognized(U.N Charter talks of Territorial Integrity), changes in the title of its sovereign
recognized and the grant or withdrawal of nationality respected by other states.

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{Lecturer's Explanationthat is why the U.N Charter talks of Territorial Integrity because this is
a state that has been recognized as a subject of I.L , an International Law person so you don't
play around with its territory .

Article 2(4) of U. N Charter states: 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. When you
travel out of Kenya what do you carry? What is your travel document, that you carry? Your
passport..alright. Now that passport is recognized because the country where you are going or
where you are transiting recognizes Kenya as a state with its own Nationality Law and Kenya
has a right to decide who becomes it National and who does not become its National and the
moment Kenya says so and so is a Kenya and has a Kenya passport nobody will question that
passport, unless you have forged it but these days you can't forge a passport, it is not
easy ..alright.. That is what we are talking about}
Where particular entity is a member of an international organization it will be bound by
the recognition granted by that organization and although the non -recognizing state
are not under legal duty of recognition they put themselves at risk legally if they ignore
the basic obligations of state relations. {Lecturer's Explanation: We saw this morning that,
when the U.N General Assembly, votes to admit a new state into the membership of the U.N,
that vote is binding. The recommendation comes from the security council, the General
Assembly takes a vote and they decide "YES" we are admitting state A into membership of the
U.N. That decision becomes binding even upon those states that had voted not to admit a
particular entity. It is binding even upon those member states of the U.N that have decided
individually not to recognize that particular entity.
When the U.N General Assembly voted to admit Israel into membership of the U.N of course
theArab neighbors were not happy and are still not happy and as I said they still.... some of them
at least 16 do not recognize Israel as a state. But they dare not, they dare not touch an Inch of
Israeli territory. This is because as we have said there we will be putting themselves at risk
legally if they do that. This is because they will be violating the purposes and principles of the
U.N, namely respecting the territorial Integrity and sovereign authority of Israel . They can't do
that. Okay..That is what we are saying here....

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 Student Question: It is in regard to Western Sahara, which has issues in regard to recognition,
how would its residents travel to other countries without passports, without problems when
there are issues of whether they are recognized or not and even pass through other countries.?
Answer by Prof; There are provisions for people to carry temporal documents to enable them
travel and that is done . Like Western Sahara what I now unless it has changed most of the
people who travel out of Western Sahara, they travel out of Western Sahara on U.N Documents
this because Western Sahara is literally still as it were " under the watch of the U.N" Like
when Yasser Arafat was travelling around the World we didn't have the state of Palestine. How
was he travelling around? How wasSam Nujoma travelling around the world on behalf of
S.W.A .P.O ((South west Africa People's Organization). S.W.A.P.O had an observer status at
the U.N General Assembly Sam Nujoma was travelling to New York to address the U.N
General Assembly. I told of when the U.S refused to allow Yasser Arafat to travel to the U.S. He
was not travelling on Palestinian Passport..
There are numerous legal and political grounds for non recognition. However, three are
important
1. The first being that the, entity to be recognized is not independent in the sense that it is
still subject to another state. {Lecturer's Explanation: I think earlier on I gave you the
Examples of the South African Bantustans. They were not independent, so we could not
recognize them . They were still subject to the Republic of South Africa}
2. The second is that the particular entity is unstable and without the prospect of
permanency. {Lecturer's Explanation: I want to put a caution as it were on that: That as you
may be aware we have had instances where, states that were still unstable were recognized and
were admitted into membership of the U.N. or the instability of an entity is in the light of the
drive for self determination and independence as was advocated by the U.N General Assembly in
the early 60's, is less of an objection to recognition than it used to be We had one such case in
Africa another one outside Africa where despite of instability there was recognition and
admission into the U.N ..For instance there was a general recognition and admission to the UN
of the new state of Congo kin Sasha DRC immediately upon its becoming independent of
Belgium although civil strife and conflict and political division were at that time so great that
only the UN intervention enabled the state to survive. Recently you saw of the states that
emerged from the former Soviet Republic, from the former Federal Republic of Yugoslavia even

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 before as it were they had set themselves up ,they had set structures up, they were already
admitted into membership of the U.N.
Sometimes that has happened so as it were to encourage them to stabilize quickly and as it were
play their role in the International Community. So that instability is not so much of an objection
particularly in the early 60's when as I said the U.N General Assembly was as it were in full
drive decolonizing those territories those that were under colonialism and those territories that
were not self-governing. You remember and I think we have seen this for Instance: Israel was
admitted into membership of the U.N when there were still a lot of Instability because of the
Arab Neighbors reaction to its declaration of independence. You rememberCount Bernadotte?
Do you remember Count Bernadotte? You guys Count Bernadotte.... The Reparation case...
3. The third, is that the entity was not established according to orderly constitutional
change. Lecturer's Explanation: You remember what we saw when we were talking about
legality of Origin . Do you remember us meeting up something like that? Legality of Origin?
What we are saying here is that if an entity has been illegally created we are not going to
recognize it. If a Government has come into power illegally we are not going to recognize it.
Alright.. So that is why we are saying , that the third is thatthe entity was not established
according to orderly constitutional change.}
There are two doctrines associated with this.
a) TOBAR DOCTRINE: advanced by Dr. Tobar of Ecuador in 1907.Dr Tobar stated
that governments which had risen to power through extra constitutional meansshould
not be recognized. The doctrine was embodied in a treaty of the same year between the
five Central American Republics.{Lecturer's Explanation; Remember as I told you this
morning , that Tobar Doctrine is now not as it were vigorously so to speak enforced. Because we
are now saying "No" we don't want to interfere with the way you want to govern yourselves . If
General Karangi takes over Uhuru Muigai mwana Kenyatta Govt. and Kenya take to the street
to celebrate and we say" Yah long leave General Karangi ...long leave General Karangi ....long
leave General Karangi...." Who is it outside Kenya that should tell us ".. No ..No...No.. don't
say long leave General Karangi." That is a matter within our own as it were domain to decide.
Okay

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b) STIMSON doctrine advanced by H.L Stimson the US secretary of state( who is
equivalent to minister of foreign affairs) in the wake of the Japanese invasion of the Chinese
province of Manchuria and the establishment of Manchukuo in 1932.
{Lecturer's Explanation: What happened in 1932 was that Japan invade this Chinese province
and setting up a state and setting up a state or something called state and naming it
Manchukuo.}
He stated that recognition should not be accorded to any situation brought about by the
acquisition of a territory in general or the establishment of a new state or the extinction
of an existing state by a war of aggression or use of force.
{Lecturer's Explanation: If you look at Article 2(4) of the U.N Charter, you will see the
contemporary Stimson Doctrine . It states that: 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.
This provision of the Charter as it were outlaws , the threat or use of force in interstate relations
and any entity created as a result of the threat or use of force will not be recognized. When
Sadam Hussein invaded Kuwait, the first thing the U.N Security Council did apart from of
course condemning the invasion as being in violation of I.L was to call upon all the member
states of the U.N not to recognize Sadam Hussein claim to the territory of Kuwait because that
was in violation of the purposes and principles of the U.N Charter.
That the modern day example of where the Stimson Doctrine as it were would be applicable.
Here you have Sadam Hussein rolling into Kuwait, tiny Kuwait as an independent Sovereign
state by itself but as it were he takes it over by force and the Security Council says "No..,
No ..No, don'trecognize any claim by Sadam Hussein of Kuwait." Kuwait is an independent
Sovereign state. Don't give any form of assistance to Sadam Hussein that would as it were
facilitate his claim to the territory of Kuwait.
Do we have any question on politics ,functions of recognition.
QUESTION
In the modern times why does it appear like America has assigned itself all forms of conflicts in
the World for example preventing invasion of Kuwait ,they are always in the frontline in such
issues?Prof Answers: Were you here in the morning? Yes.

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You were... Okay let me give you not a direct answer; Supposing Sadam Hussein had invaded
this group of Island(Maldives) which are somewhere the Indian Ocean whose current population
is about 350,000, they are not even half a million yet but that is one of my favourite Island state.
200 altos , the biggest 5.10 Km, where the capital city is, the second biggest is around 3 by 5 km
where the airport is. But what makes it one of my favourite Island states is that the highest point
above sea level is 3 meters. I don't know if you are old enough or whether some of you saw it in
February 2012 the President of the Maldives dramatized what would happen if Sea Level rise
materialized by holding a cabinet meeting under water in the Indian Ocean did any of you see?
and they held a cabinet meeting under water, but the point am making is this: Remember in the
morning I said strategic interests particularly of the big powers. The Maldives has no strategic
interests to the U.S. So the U.S.A would not have been so much in a hurry so to speak to repulse
the Invasion. But you get Sadam Hussein Invading Kuwait which is the energy lifeline of the
U.S.A., you don't expect the U.S.A to sit back and watch the supply crude being interfered with
or being interrupted because.... Do you now ... and you guys better watch out... When I see what
we are doing as a country and all that I fear for the next generation . Do you now as a fact and
if it is not true tell me, it is not true and proof otherwise .... Do you now as a fact that the U.S as
a single state has the largest oil deposits in the World and it is not exploiting those oil deposits.
It is sucking the rest of the World dry and then it will go to its strategic reserves. Do you know
that in the 1970's , 1980's and even early 1990's , the U.S oil companies were extracting oil
from Nigeria & re-injecting in their Oil wells in California to create strategic reserves. Have
you ever asked yourself why there are lines and lines of motorists queuing for fuel in Nigeria
when Nigeria is an Oil producing country? Have you ever asked yourself? All the oil goes to the
U.S. Nigeria as big as it is at least the latest information I have has only one oil refinery which
does not produce enough fuel for local consumption. I've answered your question? Yes. Let's
move on.
Prof: The Economic and Political pressures asserted by developed Countries on the developing
countries does not change their legal status. Kenya shall remain a sovereign republic with or
without those pressures from outside. This whole movement of sexuality and I don now what
what.. is not alien to us. Do you know if it were not for the high court of Uganda the Anti-
Homosexuality Act that was enacted by the Republic of Uganda would still be in force?

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It is the court that short it down and they short it down but unfortunately by the way..the
N.G.O's that are advocating homosexuality in Uganda are supported by two of my friends at
school of Law Makerere University .. Prof Silvia Tamare and the wife. And am left
wondering ..you guys what the matter. But you see they are doing that Why? Because money is
coming in from out there. But you see you can still say no to that money. Zimbabwe has said
No! to such external pressures and it has remained No! In Kenya as far as the law is concerned
we do not recognize Homosexuality despite those external pressures. But that does not affect the
statehood of Kenya. Kenya still remains a state. Kenya still remains Sovereign .It still has
Exclusive Jurisdiction over its territory. But you see if we bend to those pressures then we will
end up nowhere... Even I had some friends who I used to go to church with in the U.S when I
was there even Singing in the choir, &serving in the deacon court, who owned up and said we
are homosexuals what do you do in a situation like that? .. Do you leave them.. do you say man
for himself and God for us all.... Even church ministers want to be ordained when they have
confessed to be Homosexuals.. Do you ordain them ? Do you leave them? or What do you do?
or do you just say alright man for himself and God for us all....
Professor Qn's: There is this thing called de-facto and de-jure recognition, what does it mean?
Yah we have read of de-facto and de-jure recognition. That is what I want us to briefly consider.
Let me make the question easier for you : What is de-facto or de-jure , Is it recognition or is it the
situation to be recognized. Coz if you read the text books : Ian Brownlie . They will talk about de-
facto or de-jure. Does it say it is the act of recognition that is De-facto or De-jure or is it the
situation to be recognized that is de-facto or de-jure.
DE-FACTO AND DE-JURE RECOGNITION
Brownlie's book ; Principles of P.I.L. Let's note this:
That the termsde-facto and de-jure recognition have been traditionally applied for
recognition of Governments and a distinction made between the two. The terms do
not reflect the Act of recognition , but rather the quality of government.{ Lecturer's
Explanation: What we are saying is that the act of recognition is not the one that is de-facto or
de-jure, it is the government that seeks to be recognized that is either de-facto or de-jure} I want
you to note that: In other words(as I have just explained) it is the situation that calls for
recognition that is either de-facto or de-jure and not the act of recognition itself.

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De-facto recognition of a new government is an interim step taken where there are
doubts as to the legitimacy, stability or duration of the new government.{ Remember I
told you earlier this morning that when Idi Amin took over the govt. of Obote in Uganda,
parliament asked our minister for foreign affairs whether the Kenyan govt. recognized Idi Amin
govt. and his response was to the effect that the govt. of Kenya will wait and see whether Idi
Amin's govt. will be in effective control of the territory of Uganda , whether it will be stable or
whether ita yumba yumba and whether it will be durable or not . Then he says it will
then......The Kenyan govt. will then if those conditions are as it were satisfied as it were do
business with Idi Amin govt. Alright}
Where there are no such doubts(like you now when you have the presidential elections and
you know the elections are gone through and there is a winner declared so there are no doubts)
the government is de-jure and is recognized as such. This distinction is important, in
that representatives of De-facto Government's may not be accorded similar rights and
privileges by the recognizing states as those of the de-jure government .
There is a case I want you to read and it is on your reading list:
Haile Selassie versus Cable and wires Company limited (1939 vol 1 Chancery pg 182)
{Lecturer's Explanation:This is a claim that arises following the Italian invasion of Ethiopia in
1935. So the Italian Authorities invade Ethiopia in 1935, the emperor Lion of Judah is forced
into exile in the U.K and there were certain money's that were owing to the Govt.of Ethiopia
under a contract and the issue that arose was whether that money should be paid to the
emperor's Govt. or to the Italian authorities who were then in control of the territory of Ethiopia
from 1935 to about 1937, following that invasion and it comes as it were before the U.K Court.
You read and you will see how interesting the U.K court is reasoning}.
When a particular state extends de-jure recognition to a government it had previously
recognized as de-facto(Lecturer's Explanation: So you see when later on we
announce ,"alright now that we have seen Idi Amin is in full and effective control of the
territory of Uganda , the Govt. is stable what.. what..what we are now recognizing you officially
and we want to extend diplomatic relations to Uganda " We are now doing that De-jure
following the earlier De-facto Recognition So what happens..?...} So..
When a particular state extends de-jure recognition to a government that it had
previously recognized as de-facto, the effect is to validate retro-actively what had been

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done by the De-facto Govt. and hence vest the title in the government in power.
However sometimes a Govt. recognized as De-jure may lose such recognition, so that it
is later recognized as De-facto.
{Lecturer's Explanation; Do you remember the successive Govt.'s that came after Idi Amin,
Govt. until Yoweri Kakuta Son of Museveni came in? Yes,. These was ;Tito Okello,Yusuf Lule,,
Godfrey Minaisa,Milton Obote and then Museveni. Supposing we had recognized Obote's
Govt. when he came back and say "we are now giving back De-jure Recognition to Obote's
Govt. "and before we now it ,you now.. the Boat starts rocking, and we say'ah ah.. This one of
Milton Obote although we had given it De-jure Recognition it looks like we have to hold on and
see before we start interacting with it in any manner..' This is what we are talking about .. when
you have that kind of situation Successive Govt.'s that are coming and non seems to be
permanent and non seems to be in effective control what do you do? Do you "No we had given
it De-jure Recognition, thinking or assuming it would last but now given the way things are
moving we may now have to wait and see.} What happens is this:... In such a case the later
recognition does not invalidate the acts done by the De-jure Govt. The Acts of the Govt.
that is factually and effectively in control of Govt. and its people are valid and create
obligations for the territory. {Lecturer's Explanation: This is what we are saying and I want
you to get this clearly: We have Riek Machar Govt. in Juba. It has a possibility , of permanence,
it looks stable it is in effective control of the territory of South Sudan. We sign a treaty with that
Govt. and we say "Riek Machar thank you for recognizing Kenya Sovereignty over the Ilemi
Triangle "Why? It is in effective control it is stable , though and behold Silva Kiir who had taken
refuge in Northern Uganda ,or Central African Republic was actually building an Army and
before we know it he rolls into Juba and Riek Machar is kicked out. Now Silva Kiir says ' Yes I
am the one now in Authority.' What we are saying is this: When Silva Kiir comes back, the acts
that were performed, the agreements that were concluded by Riek Machar's Govt. bide South
Sudan. You are aware that when states enters into agreements, those agreements do not bide
government's. The agreements bides states.
What I am saying is this when Uhuru Muigai Mwana wa Kenyatta succeeds Emilio Mwai
mwana wa Kibaki, Uhuru cannot be heard to say" No.. No.. No.. Kenya is abrogating this
agreement that was entered into by the Govt. of Kibaki " This is because agreements bides states
they do not bide Govt.'s.

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 So for as long as the Govt. in Control is there,.it is in effective control even when it is
a De-jure Govt or a Defacto Govt. for as long as it is in effective control , it has all the
competence to bide the state. That is what we are saying and on that read the following case:
Civil Air Transport Inc. Vs Central Air Transport Corporation(1953) Appeal cases
Page 70.
It was a decision of the privy council of the U.K in a case arising out of .. The Chinese
Revolution..The Govt. of the people's Republic of China(communist Govt.) replaced, the
Nationalist Govt. which had been pushed out of mainland China. The U.K as it were recognized
the Nationalist Govt. initially as De-jure beforethe nationalist government removed itself from
the mainland of China to Formosa. Then the communist govt. after coming in it is recognized by
U.K as De-jure govt. rather the previous Nationalist Govt.. The Nationalist government while
out of China mainland sold to two American Citizens, all the physical assetsincluding the 40
aircraft lying on Kai Tak airfield, of the Central Air Transport Corporation which was a Chinese
enterprise. These assets were, transferred to the American company (the appellantsCivil Air
Transport Incorporated.) by the partnership. Later the communist govt. was recognized as De-
jure by U.K . Then the Question arose to whom was the property of Central Air transport
corporation a govt. enterprise? Was it the previous govt.(nationilist initially recognied as De-
jure but now not recognized as so or the Communist Govt. which came in place of the former
and was recognized as De-jure by the U.K govt.?Sir Gerald Howe C.J. held that purported sale
by the nationalist government to the American partnership on December 12, 1949, was not valid
since (a) the nationalist government had acted not in good faith as trustees, but for an improper
purpose, in concluding the agreement of sale; (b) the subsequent recognition of the
Communist government by H.M. Government as the de jure government of China had
the retroactive effect of conferring upon the Communist government, as from October 1, 1949,
ownership of the assets of the Chinese enterprise, it being organized as a State-owned enterprise.
The American company appealed to the Appeal Court of Hong Kong against the judgment of Sir
Gerald Howe C.J. and on December 28, 1951, the Appeal Court dismissed its appeal.
Besides evidence from state practice, and International arbitral decisions, show that
there is little distinction between De-facto and De-jure recognition with regard to
validity and binding nature of Governmental Acts.

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The criterion is the effective control and permanence of the Govt. in actual
administration of the state. Accordingly a de-facto Govt., has full responsibility and its
acts on behalf of the state have the same valid standing in I.L as those of any other Govt.
As regards International rights and privileges there is no difference between De-facto
and De-jure Governments. {Lecturer's Explanation: Now tell me, when you have a
transitional Govt. in Somalia. Is the transitional Govt. a De-facto Govt. or is it a De-jure Govt.
from what we have seen or what is called in Kiswahili Serikali ya Mpito? Students Answers:
Yes. Because of the doubts about the duration it is in place. and the stability
Lecturer: Does it fully represent the state of Somalia in the International Frame, . You see this is
what we are saying..That, Whether it is that Serikali ya mpito ,(transitional Govt.) it has as
much competence to bide Somalia as the Dejure Govt. that has been elected or whatever. So
when it comes to as it were,the International Law consequences of the acts of those
Govt.'s, there is no difference between the acts of a de-facto Govt. and the acts of a de-
jure govt. All of them bide the state. Sawa sawa.
Question by a Student: With respect to Somalia, Puntland has signed oil concessions with
certain oil companies, at the same time the Transitional Govt. oil concessions with other oil
companies, Which ones are binding on Somalia and which ones are not? Prof. Answers: You see,
Lemmi tell you my friend, if I were the legal adviser of those companies seeking, to sign Oil
concessions with Puntland I would tell them not to. Because why? They are taking, not from
just a legal point of view, what is called a political risk of foreign investment. You can
understand Why? Because as I said, the International Community does not recognize Puntland.
The International community recognizes the Socialist Democratic Republic of Somalia. So if you
have the TransitionalGovt. of the Socialist Democratic Republic of Somalia then that is the govt.
that has the competent to bind Somalia and when and if we have a stable Govt. in Somalia and
it is in control of the entire territory of the Socialist Democratic Republic of Somalia nobody will
hear about Puntland, and nobody will respect any agreement entered into by Puntland. Because
what is Puntland in I.L?
It is like what I see, happening in Kenya, ..you now we have taken this issue of devolution
without considering the legal consequences. There is no way a County Govt. is going to
conclude, an agreement with a foreign Govt. There is no way Kidero as the Governor of Nairobi
is going to say " I am representing the County of Nairobi and I am concluding this agreement

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with the Govt. of Poland." Because the Govt. of Poland will interact with the Govt. of Kenya
Govt. at the state level, not at the lower level. So unless Kenya or the Govt. of Kenya is party to
that agreement that the Nairobi County is entering into with the Govt. of Poland, Poland is
risking everything.Okay...., because International Law knows Kenya as one International Law
person and knows Uhuru Muigai Mwana Kenyatta as head of state, and Govt. and therefore the
representative of Kenya. So Kidero cannot go to Poland and sign an agreement with the
President of Poland or whoever it is. And I think that enthusiasm somebody needs to caution.
Unfortunately my friend the A.G is not taking that role because he says , he is not the A.G of the
County Govt.'s . He is the A.G of the National Govt. . So he is leaving that to somebody lower
down there and when you get to see the kind of lawyers the County Govt.'s are employing.. I
don't want to say anything. Do we have countries with limited recognition? There is nothing
like limited recognition .Palestine does not have limited Recognition. The fact that a particular
entity has been recognized by few states does not give it limited recognition. Question: How
about Hong Kong in China? Hong Kong was leased from China by the U.K and when the lease
period expired, Hong Kong was returned to China by the U.K in 1997 30th June. So Hong Kong
is not a state. Lemmi, tell you this; Lemmi tell you this as we saw, and this is the position: That
recognition is discretional ..alright and Kenya can decide to recognize a particular entity as a
state. There is nothing like limited recognition. When we recognize South Sudan as a state
we have recognized South Sudan as a state. We are only acknowledging a pre-existing
situation,..a pre-existing state of affairs. South Sudan has satisfied all the I.L requirements of
statehood. So we are now just acknowledging that "South Sudan you are a state as much as we
are and we are ready and prepared to enter into relations with you" But the nature and scope of
relations that we enter into with South Sudan will depend on the mutual interests and mutual
agreements between us. We can have relations short of full diplomatic relations for
example that does not mean we have given South Sudan limited recognition. Lemmi
give you an example: We know all of us ,don't we? The Republic of Mali in West Africa ,do
we ? We do..We have never doubted the statehood of the Republic of Mali.
But we do not have diplomatic relations with the Republic of Mali. This is because the
establishment of diplomatic relations depends on Mutual agreements between the states, which
mutual agreement also depends on the mutual interests. What we have and what Mali has done
is to open a consulate in Nairobi. And for those of you who do not now the Wife of our

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immediate former Vice-Chancellor Nairobi University(Prof. Makokha) is the Mali Consulate in
Nairobi. The wife of Prof. Makokha she is herself a Nigerian but, she is the Mali Consulate. So if
you want to travel to Mali, you will go to her office in Hurrigham and she will process your
Visa for you and you will go to Mali. So there is nothing likelimited recognition. The fact that
we do not have full diplomatic relations with this one or that one does not mean we have
recognized it half way. Okay..and that is going to come out clear when we look at this two
theories. Sasa tuendelee..Thank you..?}
THE LEGAL SIGNIFICANCE OF RECOGNITION.
The legal significance of recognition is greatly influenced by two theories namely:
 The Constitutive Theory
 Declaratory Theory
The constitutive Theory
According to the constitutive theory, recognition has a constitutive effect in that a state
is and becomes an International Law Person through recognition only and
exclusively. {Lecturer's Explanation: What this theory is saying is that unless that entity A
has been recognized as a state by the others it does not become a state.}In other words
International Personality is held to be conferred only through recognition of the entity
in question. An entity may possess all the formal attributes and qualifications of
statehood but unless recognition is accorded to it, it will not acquire international
personality. This theory is related to an extreme positivists approach because if consent
is posited as the major source of International Law then it will be quite simple to assert
that international personality can be obtained only through the consent of existing
legal persons by the performance of an act constituting recognition.
{ Lecturer's Explanation: Lemmi Explain here: You are aware that positivists tell us that
international Law binds and International legal rights are conferred and International Legal
obligations imposed by the consent of states.
So what we are saying here is this: That this theory as it were is related to that approach because
under that theory an entity will not as it were have international Law rights conferred upon it,
an entity will not have International law duties imposed upon it unless other states consent to
extend those rights or to impose those duties on that entity. that is what are saying that this
approach is related to the extreme positivists approach. Because ,remember we said and it is

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 true and this is true only for Treaty law: That unless and until Kenya consents to a
particular treaty the provisions of that treaty do not bind Kenya. Alright.. So this is what the
positivists are saying and that is why we are saying that this constitutive approach is
related to the extreme positivists approach. }
Anzilotti and Kelsen are the main antagonists in this theory. (Read an Article by
Kelsen on Recognition)
However this theory isnot altogether correct for a number of reasons.
1. New states are conferred with the rights and bear obligations under International Law,
independent of the will of other states through recognition.{Lecturer's Explanation: When
South Sudan emerges on the International Plain, as a new state does it say "Look you guys have
not recognized me, so I bear no International Law obligation" Can we tell it "Look; South
Sudan, because we have not recognized you, you have no rights under International Law" Can
we tell it that? No.. That is why we are saying New states are conferred with the rights and bear
obligations under International Law, independent of the will of other states through
recognition"}
2. State practice shows that recognition is primarily a political act on the part of states.
Accordingly, the legal status of an entity cannot be held to be dependent upon the
performance of such a discretionally, unilateral political act. {Lecturer's Explanation:
This is what we are saying: We are saying the legal status of an entity is determined by
International Law. It is I.L that determines whether a particular entity is a state or is not a state.
That far are we in agreement: That the legal status of an entity is determined by I.L, Because it
is I.L that confers rights and duties upon that entity after it hasas it were conferred
International Legal Status on that particular entity. We are saying that legal Status, cannot be
held to be dependent on a discretionally Political Act. Okay. So we are saying the constitutive
theory cannot be correct.}
3. State practice shows that it may not be possible to ignore completely a non- recognized
entity.{Lecturer's Explanation: I think I have given you the Example: Israel. The Arab
Neighbours cannot dare ignore the legal status of Israel, even if they have not recognized it
because Israel or the legal status of Israel has already been determined by International Law.
Whether or not Arab Neighbours recognize it that does not change its legal status , because that
legal status is conferred by rules of International Law}

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4. It is not clear how many members of the international community must recognize a new
entity for it to qualify as a state.{ Lecturer's Explanation: What we are saying is that if we
were to argue and hold that an entity becomes a state only upon recognition by other states ,
then the question that arises is :How many states must recognize that entity before it becomes a
state? Must it be the193 member states of the U.N , must it be the 5 partner states of the East
African Community, Must it be 52 member states of the African Union or how many states
then? Alright.}
5. The theory fails to address the issue of whether the existence of the entity as a state
will be relative only those states which extend recognition to it.An entity cannot be a
state visa vis those states that extend recognition to it and at the same time be a non
state visa vis those states that do not recognize it.
{Lecturer's Explanation: This is what we are saying and I want you to listen very carefully here
: Entity A is recognized by B,C,D,E,F. Entity A is not recognized by G,H,I,J,K. Can it be a state
visa vis those states that recognize it and a non-state entity visa vis those states that do not
recognize it? In other words: Is statehood objective or relative or for that matter
subjective? Which is which?Objective. Right.. So Statehood is objective. Legal criteria are
there and once those legal criteria are met the entity is a state and the entity exists as an
Objective International Law Person.If we were to say the entity becomes a state when
recognized we would end up as it were creating Subjective Or Relative International Law
Person. The entity will be an International Law Person, relative or subjective to those states
that have recognized it. It would be a non-state entity relative to those states that have not
recognized it. Can it be one and the same or rather one and the other at the same time? And we
are saying No.That is why we are saying the Constitutive theory is not correct for a number of
reasons.
But there is the Situation when we can term Recognition Constitutive: Recognition is
generally declaratory with the above understanding, except for, this Situation: Where
we are,we are saying that look" recognition is constitutive"in the sense that only those
states that have been recognized will be granted Locus Standi before our municipal
Court. What we are saying in this theory is that unless and until Kenya recognizes South
Sudan there no way the High court of Kenya will entertain a claim arising from a situation
where South Sudan is involved. I told you at the beginning of the course that look' Unless Kenya

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recognizes South Sudan Kenya will not recognize the laws of South Sudan. So my Sister for
Example Evelyn you go to Juba and you get attracted to this Dinka Man and you get married to
him and you come to Kenya and as it happens loves goes through the window and he becomes
Vinegar and you want to divorce him the first question we will ask is: Do we have Jurisdiction
over this marriage? Was it a marriage celebrated under a system of law that we recognize? So if
we do not recognize Sudan, we do not recognize their system of Law , we will not recognize
anything coming from there. So we will tell you" sorry we have no jurisdiction to entertain you
petition for Divorce" This is because we do not recognize any marriages celebrated according to
South Sudanese Law because in the first place we do not recognize the state. That is what we are
saying; except for that recognition is declaratory. It is the same thing also and we are going
to see this when we get there: if somebody or one of us goes to Juba and engages in business
either with the Govt. of South Sudan or starts, you know a company there and owe unto you the
Govt. of South Sudan decides to Nationalize your business and we do not recognize South
Sudan. Then you come and file a suit against that Govt. of South Sudan. There is no way the
Govt. of South Sudan will come out and say we are pleading state immunity, because we will
tell them look you are not a state so you are not entitled to any immunities before our courts, you
cannot claim such immunities. Okay. That is as I said the only qualification to the declaratory
theory.That Recognition is Constitutive in the sense that it now opens, the courts of recognizing
state to the officials and entities or persons from the recognized state.
Okay.

The declaratory theory

The 2nd theory about recognition holds that it is a declaratory act at most a formal
acknowledgement & admission of already existing facts. The act of recognition is not
decisive of the new entities claim to state hood because that status is conferred by
International Law.The international legal personality of a state does not depend on its
recognition as such by other states but on the operation of the law.

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It is conferred by rules of International Law and whether or not a state or a government
is actually recognized by other states, it is still entitled to the rights and subject to the
general duties of the system. {Lecturer's Explanation: So what we are saying is that statehood
or that legal status of a state is conferred by International Law and not by discretionally Acts of
Recognition so that whether or not there is recognition that status does not Change. Legal status
of a state does not change because other states have refused to recognize it or because other states
have recognized it as a state. It remains a state irrespective of the absence or presence of
Recognition. Okay}
Endz !!!! of Lesson Nine.
This theory has been endorsed on many occasions by international conventions, arbitral
decisions and even the international court of justice.
All in all the declaratory theory is favorable for the following reasons.
1. The constitutive theory amounts to states creating and demolishing entities and
derogates from the principle of the sovereign equality of states. {Lecturer's
Explanation: Remember what I told you here yesterday: there is an entity A it is recognized
by B,C,D,E . it is not recognized by F,G,H,I. What is happening is this; B,C,D,E are creating
this entity(Entity A) by recognition. F,G,H,I are demolishing this entity(Entity A) by
refusing to recognize it. And we are saying that derogates from the principal equality of
states. Why ?Because the Constitutive theory seems as it were to give the authority to
existing states to decide which entity becomes a state and which entity does not become a
state. And yet if you remember from the Treaty ofthe Peace of Westphalia concluded in
the year 1648 all states are equal. So we do not want to give through the Constitutive
theory authority over China to Say" Look; Nauru you are so tiny we do recognize you, you
are a non-state entity that is what we are saying"}
Good to know: Sovereign equality of members of UN is under; (Article 2(1) of the U.N
Charter.)Besides the legal competence of states is established by International Law
and not by political discretion which determines the grant or withholding of
recognition.
2. It is not clear how many recognizing states will be enough in order to create a new
state under the constitutive theory. {Lecturer's Explanation: We had already seen this:
Do we need entity A for example to be recognized by this four B,C,D,E for it to become a

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 state? Or should they be 8,should they be 12,should they be 16,should they be 20, or should
they be the 193 member states of the U.N?} Besides it is not clear whether the new
entity will become a state visa vis the recognizing states and not a state visa vis the
non- recognizing states.
3. Judicial decisions have endorsed the declaratory theory.
For instance in the case of:
Deutsche Continental Gas-Gessellschaft Vs The Polish State(1929)5 AD 11
In that case the Mixed Arbitral Tribunal (mixed in the sense that the members of the
Arbitral tribunal were picked from Polandand Germany)stated"- - - According to the
opinion rightly admitted by the great majority of writers on International Law the
Recognition of a state is not constitutive but merely declaratory. The state exists by
itself and the recognition is nothing else than a declaration of its existence
recognized by the state from which it emanates."
Good to Know from Prof: By the way, do you guys know, when and why square brackets
i.e [w ] or round brackets i.e ( ) are used in Law Reports? Find out : We use square brackets
when we want to modify another person's words showing that they are not his words, to add
information, to add missing words, to add editorial or authorial comment, to modify a direct
quotation . We use round brackets or Parentheses are basically used to extra information to a
sentence.

This is also shown by thecase of :

Re Al-fin Corporations Patent[1970] Ch 160.
The English courts reaffirmed the fact that recognition was not constitutive but
merely declaratory:
In this case , Section 24 (1) of the 1949 English Patents Act allowed a Patentee(this is
a person in whose favour a patent has been registered) an extension of his Patent if he had
suffered loss ‘by reason of hostilities between His Majesty and any foreign state.’ In
this case the applicants sought an extension under section 24 (1) in respect of loss

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suffered during the Korean War between 1950 -1953. The Comptroller
General(equivalent of our registrar of companies) rejected the application partly on the
ground that the Korean War did not come within section 24 (1) because North Korea
not having been recognized by the UK was not a 'foreign state' within the meaning of
the statute. {Lecturer's Explanation: I hope you are getting here: So here we have a case
where a person wants a patent extended because, he is saying " Look I have suffered loss as a
result of the Korean War can I have my patent extended" As you are aware Patent, Copyright
e.t.c or as you may be aware later on they are registered for a certain period, they don't as it
were exist in perpetuity. Copyright am aware is 20 years ,Patent I cannot remember of head.
So this one here want the patent extended but the Comptroller General/Registrar General
says " No, No , No.. we cannot extend that Patent because the U.K was not at war with Korea
and in any case Korea is not a foreign state because the U.K has never recognized Korea as a
state. Okay .. The U.K have never recognized Korea as a state so we cannot extend their
patent. So what do you do? You seek a ruling by the court}
The applicants sought a ruling on this by the Court,(and that matter went before a judge
called Graham J). On this Justice Graham J. held, ‘…I have no hesitation in holding
that the phrase ‘any foreign states,’ although of course it includes a foreign state
which has been given Foreign Officerecognition, is not limited there to.(foreign office
of the U.K is equivalent to the office of Ministry of Foreign affairs). It must at any rate
include a sufficiently defined area of territory over which a foreign government has
effective control.( Can you see the traditional Indicia of statehood raring their heads here?)
Whether or not a state in question satisfies these conditions is a matter primarily of
fact in each case.- - -that at the relevant time North Korea had a defined territory
over which a government had effective control and that His late Majesty was
engaged in hostilities in this state albeit his troops were under the command and
formed part of the United Nations forces fighting in the area.( pursuant to the General
assembly uniting for peace resolution several countries contributed their troops towards the
U.N force that as it were got China out of South Korea and created a buffer zone between
South and North Korea ) I hold therefore that North Korea was a foreign state within
the meaning of section 24 and that the applicants are entitled to proceed with the
application for extension on that basis.’

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That is the third reason why we are saying Declaratory theory is Preferable.
Extra Lecturer's Explanation:(those of you who did history remember the Korean War
between North Korea and South Korea. North Korea literally running over South Korea with the
assistance of China.. and then that was the only time there was a stalemate at the security
council. The stalemate actually came because of a.. China refusing to take its sit on the Security
Council insisting that Taiwan of Nationalist China was not a state entitled to admission and
was not the one to take its sit at the security council. So there was a stalemate on the security
council and it was the only time in the History of the U.N, the Korean War was discussed and a
decision taken by the General Assembly. The General Assembly adopted what is known as
'Uniting for peace Resolution' and it was that uniting for peace resolution that authorized
putting together of an International force to get China out of South Korea and to create a buffer
Zone(Korean Peninsula) between North Korea and South Korea., That buffer zone(Peninsula) is
still there up to know.}
4. State practice supports the declaratory theory.
States enter into official relations with the recognized entities and conclude
international agreements with them. Such practice is founded on the believe that non-
recognized entities have international personality. {Lecturer's Explanation:We will
conclude agreements with Sudan, we will exchange diplomatic envoys with Sudan, without even
having to say" Yes South Sudan we recognize you"}

LEGAL CONSEQUENCES OF RECOGNITION .

Professor's Introduction: Remember where we started from: We said recognition is
discretionally, unilateral political Act. But once it has been taken it gives rise to
consequences in International Law, and Municipal Law. Let's go back there and finish
by looking at what these consequences are. What are the legal consequences of
recognition?:
We shall look at legal Consequences first under municipal law and then secondly
under International Law.
1) Legal Consequences Of Recognition In Municipal Law

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Professors sub-introduction: When we recognize a foreign state out there , when we recognize a
foreign govt. out there , what are the implications within our own legal system, our own
municipal law system?
Recognition is essentially a matter of intention and may be accomplished through
several modes. However the act or recognition must however give a clear indication of
an intention to:
a) treat the new state as such.{ Lecturer's Explanation; so that act of recognition must give a
clear intention that Kenya is going to treat South Sudan as a states. Nothing short of that.
b) accept the new government as having authority to represent the state it purports to
govern.{ Lecturer's Explanation: When we say we are recognizing Idi Amins Govt. in
Uganda, we are saying we are accepting Idi Amin's Govt. as having the authority to Govern
Uganda and therefore having the Competence to represent Uganda at the International
Level.
c) Recognize in the case of belligerents that they are entitled to exercise belligerent
rights.
A number of legal consequences flow from recognition within the Municipal Law
Sphere:
1. First ,Recognition has the effect of giving the recognized state or government access
to the courts of the recognizing state. In other words, an unrecognized state or
government cannot sue or be sued in the courts of the non recognizing state.
{Lecturer's Explanation: I used the word and the phrase Locus Standi that is what we are talking
about.}Neither can its laws be recognized for the purposes of the conflicts of
laws(remember the example I gave of wanting to divorce).
This is illustrated by the case of Luther v Sagor. (in the course outline)
In June 1918(coming just soon after the Russian revolution) the Russian Socialist Federal
Soviet Republic passed a decree declaring all mechanical saw mills and wood working
establishments belonging to private or limited companies to be nationalized . (I don't
know what these guys saw in nationalization. we have that in Russia , we have that in China by
the Chinese Revolution, we have that in Cuba after Fidel Castrol takes over in 1949, we have
that in Libya when Gadaffi takes over in 1969 and so on and so forth,..) In 1919, pursuantto
the decree the plaintiff’s mill together with its stocks of wood was ceased on behalf of

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the Republic. In August 1920 the representative of the Russian Commercial Delegation
in London contracted with the defendants for the sale and delivery of a quantity of
timber which included some that had been ceased from the plaintiff's.{ Lecturer's
Explanation: You see the scenario; Alright.. This was as it were a running business owned by
the plaintiffs in Russia . The new Government decides to nationalize, in other words ,it no
longer as it were remained private business it becomes national business or state business , being
run by the Govt. and what happens is that the representative of theRussian Commercial
Delegation in London what we call these days the Commercial Attaché. Russian Commercial
Attaché in London , then contracts with the defendant and says" We are going to sell to you this
timber that is now as it were state business. We are going to sell to you on behalf of the state.}
The plaintiff sought inter alia a declaration that the timber was their property and
injunction restraining the defendants from selling ,pledging or in any way dealing with
the timber. The defendants argued that the decree of June 1918 being the act of a
sovereign government was valid to deprive the plaintiffs of their title to the timber and
could not been impugned not challenged. The Kings Bench Division decided in favour
of the plaintiff.( in other words issued an injunctionrestraining the defendants from
selling ,pledging or in any way dealing with that timber because according to the King's Bench
Division the Timber was the Plaintiffs property.)
However on appeal on the basis of certificates issued by the UK foreign office stating
that the Soviet Government was recognized by the UK as the de facto government of
Russia before the confiscation. The Court of Appeal confirmed the defendant’s title to
the wood. Lord Justice Bankes stated, "the courts of this country will not inquire into
the validity of a foreign government which has been recognized by the government of
this country- - -the government of this country having recognized the Soviet
Government as the government really in possession of the powers of sovereignty in
Russia, the acts of that government must be treated by the courts of this country with all
the respect due to the acts of a duly recognized Foreign Sovereign State. " {Lecturer's
Explanation: So we are saying that in Municipal Law that once we have recognized the
Government of Riek Machar in Juba, our court cannot challenge the Acts of the Government of
Riek Machar in Juba our courts cannot as it were challenge the acts of the Govt. of Riek Machar

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in Juba that we have recognized. We will as it were respect them , we will give them all the due
respect and we will if possible enforce them.}
Similarly in the case of The Republic of Somalia v Wood house Drake and Carey Suisse
[1992] Vol.3 WLR 744(read)
The Queen's Bench division of the UK Supreme Court refused to allow the
representative of the interim government of Somalia to bring a claim before it on the
ground that it was not a recognized government on international law. In January 1991
the incumbent government of Somalia purchased a cargo of rice for delivery at the port
of Mogadishu. In the period between the purchase and delivery conflict broke up in the
country the government was overthrown and a provisional government established. In
the meantime the cargo of rice could not be delivered at the port of destination due to
the fighting. Since the cargo could not be delivered the provision of government raised
an action for recovery of the price of the undelivered cargo. The ship onus issued a
summons against the republic of Somalia. The court ordered the original bills of lading
to be lodged with the court pending the settlements of the dispute. One of the issues the
court had to consider was whether the provisional government had the locus standi to
bring the action.
The court held that on the evidence the provisional government of Somalia had not
been recognized and hence had no lawful standing in the English court. Its claim to the
price of the consignment was rejected.
*Transporters Airos de Angola v Ronair(Read)
Very Interesting case involving the Angolan Govt. that had not been recognized by the U.S
because you remember the independent Govt. was lead by MPRA. The U.S was not very ready
to recognize the Govt. There was a deal between the Angolan Civil aviation and an air craft
purchasing company in the U.S. This company was to deliver a Boeing to the Angolan Company
and they defaulted on the Contract and the Angolan Authority filed suit in the U.S and the US
courts were like" Hey do we have jurisdiction over this matter?" Does the US Govt. recognize
the MPRA Govt. of Angola? Of course there was as it were a note issued from the department of
the state that this was not for the U.S court to undertake. And actually that what happens in
most cases . Where the judicially is unsure of whether or not we have recognized a foreign Govt.
the judicially always defers to the office of Foreign affairs and seek advisory . They ask what is

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 the relationship with that entity, do we recognize it , do we have dealings with it? and on the
basis of that then the court will then proceed. Even in cases where somebody claims to be entitled
to diplomatic immunities and privileges and if the court is in doubt it always refers to the
ministry of foreign affairs and ask what is the position?
2. Secondly a recognized state or government enjoys sovereign immunity from suit in
the courts of the recognizing state and cannot be sued without its consent.
Lecturer's Explanation: Once we have recognized South Sudan as a state you cannot go to the
high court and file a suit against the Govt. of South Sudan. Because then the Govt. of South
Sudan will come and say" Hey, High court you have no jurisdiction over us. We are pleading
state immunityor what Americans call Sovereign Immunity. We are pleading Sovereign
Immunity you have no jurisdiction over us because you cannot sit in judgment over an equal.
Okay.. we will see that when we get there" }
The plea of immunity may be raised by an authority recognized as being in de- facto
control even if the proceedings are brought by the de jure sovereign.

*The Arantzazu Mendi [1939]AC Pg 256

This problem of the relationship between a de facto government and a de jure
government as far as English courts were concerned, manifested itself again during the
Spanish Civil War.
The case of the Arantzazu Mendi concerned a private steamship registered in Bilbao in
the Basque province of Spain. In June 1937, following the capture of that region by the
forces of General Franco, the opposing Republican government issued a decree
requisitioning all ships registered in Bilbao.
Nine months later the Nationalist government of Franco also passed a decree taking
control over all Bilbao vessels. In the meantime, the Arantzazu Mendi itself was in
London when the Republican government issued a writ to obtain possession of the
ship. The owners opposed this while accepting the Nationalists' requisition order.It
was accepted rule of international law that a recognized state cannot besued or
otherwise brought before the courts of another state. Accordingly, the Nationalists
argued that since their authority had been recognized de facto by the UK government

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 over the areas they actually controlled, their decree was valid and could not be
challenged in the English courts. Therefore, the action by the Republican government
must be dismissed.
The case came before the House of Lords, where it was decided that the Nationalist
government, as the de facto authority of much of Spain including the region of Bilbao,
was entitled to be regarded as a sovereign state and was able to benefit from the
normal immunities which follow there from. Thus, the action by the Republican
government failed.
The House of Lords pointed out that it did not matter that the territory over which the
de facto authority was exercising sovereign powers was from time to time increased or
diminished."' This case marks the high-point in the attribution of characteristics to a de
facto authority and can be criticized for its over-generous assessment of the status of
such an entity.
3. The legislative and administrative acts of the recognized state or government will be
given effect to the recognizing state.
{Lecturer's Explanation :We have just seen the case of Luther Vs Sagor where the U.K Court
gave effect to Soviet Nationalization Decree. Alright..}
4. Recognition once granted is retroactive. (In other words it has retroactive effect)
It is backdated to the establishment of the authority in question and does not relate to
the time it is accorded. Lecturer's Explanation: If you remember we have just seen in Re-
Alfin Corporations Patent [1970] Ch 160The Korean War was 1950-1953but the case is
being heard when: late 1969- early 1970. Also we have just seen in theLuther vs Sagor case
where the British recognition of the Soviet government was backdated to 1917 when the decree
was passed and all the legislative and administrative acts of the soviet government had to be
recognized as well.
2) Legal Consequences In International Law.
An important legal consequence flowing from the recognition of an entity as a state or
government of another state is the doctrine of ‘Act of State’. {Lecturer's Explanation:
Remember and I want you to be very careful on this because a lot of students make a mistake and
they confuse Act of state with state immunity.Act of state and state immunity are two
different concepts under International Law. Do not make this common mistake that students

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make year in year out. Lemmi Explain this: State Immunity:We have seen when we recognize
the Govt. of the Republic of South Sudan and you have a claim against the Govt. of South Sudan
and you file that claim in the High Court of Kenya, the Govt. of South Sudan will come with
maybe a preliminary objection in the first instance and say" look we are objecting that suit
because we enjoy state immunity. We cannot be sued in the municipal courts of Kenya"
Alright.. That is the concept that is there. That states enjoy state immunity in the municipal
courts of other states. We shall see that in detail and that is the Generalrule. That state enjoy
state immunity . So you file a case at the high court against the Govt. of South Sudan and it
comes up and says "No we are pleading state immunity".Now Acts of state Lemmi
Explain this: When we are talking of an Act of state or Acts of state doctrine what do we
mean?This is what we are saying: Kenya has recognized Uganda. The moment we recognize
Uganda, the moment we recognize South Sudan , the moment we recognize Ethiopia or any
other country. What we are saying is that look: This is not only an International Law person,
but a state that has jurisdiction over its territory. A state that enjoys territorial Integrity.
A state that has sovereignty over its territory. Now ,what does Sovereignty entail:
Sovereignty the exclusive authority of a state to enact , to enforce, and to adjudicate its
laws within its territory. Alright..So when Uganda or let me put it this way: When Ugandan
parliament enacts a particular law pursuant to the Constitutional procedures, no Court
outside Uganda can sit in judgment over that Act of the parliament of Uganda. Why?
Because Uganda enjoys jurisdiction, enjoys territorial sovereignty, over its territory.
And as I said Sovereignty entails the exclusive authorityof a state to enact , to enforce, and to
adjudicate its own laws within its territory . So even when we do not like the 'Anti-Gay
Homosexuality Law passed by the parliament of Uganda , Nobody can challenge it in the high
court of Kenya. If you want to challenge that Act, where do you go? You go to the high court of
Uganda at Kampala or Jinja or wherever. Why?Because it is only the High court of Uganda
that has the Authority to interpret and adjudicate any dispute relating to the laws of
Uganda. Are you getting it? So we cannot as a state:
1) First,Sit on judgment over the laws of a state that we have recognized , the laws that
have full authority in that particular state.
2)Secondly, the Kenyan Courts cannot challenge the judicial decisions of the Courts of
Uganda or any other foreign states courts . We cannot sit in review , over the decision of the

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supreme court of Uganda . This is because we as a state, do not have extra-territorial
jurisdiction. Whether that decision of the Supreme court of Uganda violates International Law
or not ,that is not for Kenya to decide. If it violates a rule of International Law that will be for the
I.C.J to decide. Alright. Why? Because before the I.C.J there is nothing like state immunity.
There is nothing like Act of state.If the Judiciary of Uganda violates a rule of International
Law Uganda cannot go to the I.C.J and say" NO, that is the decision of our supreme court and
we stand by it. No. Uganda cannot go to the I.C.J and say that is an enactment of our
parliament and in Uganda the Parliament has the supreme Law making powers. we cannot.
Alright..
3)Thirdly, still on Act of State: The executive Acts of a foreign Sovereign state
recognized by us(Kenya) cannot be ,reviewed by us(Kenya).So if tomorrow Museveni
wakes up and says" This is what is going to be the rule in Uganda" We cannot say "Hey,
Yoweri Museveni what are you saying? . ". Who will challenge it?The only person who will
challenge it will be in Uganda.
Challenge that executive decision, before the High Court of Uganda but not outside Uganda.
The Vis-versais true. There is no way the Supreme Court of Uganda or if Juba has a supreme
court can sit in Judgment over an Act of Parliament passed by the Kenya National Assembly.
There is no way a foreign court would sit and review over an executive Act by Uhuru Muigai
Mwana Kenyatta. Recently when Uhuru says alright..forget about phasing out 14 seater
Matatus, and remember that was a gazette notice that had been publishedby the minister.
Nobody can go out there and challenge that. If you want to challenge that order where do you
go? You go to the High Court in Kenya. Recently this year April 2015,Justice Isaac Lenaola
says" Alright Patrick Tutui you qualify to stand as JAP's representative for Kajiado Central By-
election ". Alright. We cannot have somebody outside Kenya challenging that. That can only be
challenged in Kenya. And that is the essence of what the Doctrine of Act of State is all
about. The Doctrine of Act of state and State Immunity are completely two different
Doctrines do not confuse them. Although what would happen in both cases is that you
will be forced to seek remedy before a foreign court or to adopt diplomatic channels.
Before a foreign court in the sense that if you have been wronged by an Act of Parliament of the
Republic of Uganda, you can only seek remedy in the Ugandan High Court. That to you as a
Kenyan is a foreign court. Or if you go to Uganda and you are not satisfied and then what

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 happens is that you come back and say 'Look, Ambassador Amina Mohammed this is the injury
I have suffered at the Govt. of Uganda a foreign state can you intervene, can you have the Govt.
of Kenya intervening on my behalf and when the Govt. of Kenya Intervenes, if the matter is not
settled diplomatically it may be before an International Tribunal but not before the High court of
Kenya.
Questions to Professor;
i. Can we challenge an ac of a foreign state /Govt. which we do not recognize? You can only
challenge that when the interpretation and application of that particular Act is extended to you
in Kenya. You cannot challenge it in Uganda. Alright.... Even when you do not for Example
Recognize Uganda as a state you cannot challenge it here unless it is not extended to you.
ii. What position does the above hold when it comes to conflict of Laws? Now listen here. When it
comes to conflict of laws What are we saying? We are saying, that there is an element of foreign
law and that element comes either because there is a contract that was concluded in a foreign
country or to be performed in a foreign country or there is a tort that was committed in a foreign
country and the claimant is here before us. Alright.
In the Act of state Doctrine what we are saying is this: And I want us to get this clearly.. in the
Act of State Doctrine.. what we are saying is that the matter before us is non-justiciable .
Okay ... In other words the High Court of Kenya lacks Jurisdiction Ratione Materiae.
Meaning the High Court of Kenya lacks Subject matter Jurisdiction. When you are
talking about Conflict of Laws or State immunity we are talking of jurisdiction Ratione
Personae. What does that mean? We are saying that look..the High Court of Kenya has
Jurisdiction over the subject matter but because one of the parties to the suit is
somebody who enjoys Sovereign immunity the High Court of Kenya will Lack
Jurisdiction. But in that one there(Act of state) we are saying the High Court of Kenya
has no jurisdiction over the Subject matter regardless of who it is that is appearing
before it.It has no jurisdiction over the subject matter. Non-at all. okay..}
iii. What about when the High Court of Kenya dissolves a marriage done in China? But before that
remember we said, the High Court of Kenya has to ask itself :One;do we recognize, do we know
this place, and if it says Yes ,then it asks; do we recognize this law. The matter of recognition is
different from Conflict of Laws. Do we recognize this law because the High Court can only
dissolve a marriage that it recognizes. And the marriage when you get there you will see that;

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the Institution of marriage is a legal Institution. It is not simply you calling your girlfriend my
wife, my wife, and then you have a marriage..No! . It is a legal Institution.. then, What are the
legal requirements? Okay..}
The acts and in particular legislative, executive and judicial of a recognized foreign state
and or government are not justiciable by the courts of the recognizing state. This flows
from the International Law concept of the sovereign equality of states.
Every sovereign state is bound to respect the independence of every other sovereign
state and the courts of one state/country will not sit in judgment on the acts of the
government of another state done within its own territory.
In other words the doctrine of act of states precludes the courts of one state from
enquiring into the validity of the public act of a recognized foreign sovereign power
within its own territory.Example: Kenyan Supreme Court cannot sit or review on judgments
of the court of Uganda.

This is illustrated in the case of

Underhill v Hernandez.
This was a decision of the Supreme Court of the U.S. In the late 19thCentury,
In August 1892 an army party under the defendants command took power in Bolivar
Venezuela. During the engagement, all of the local officials left and all the vacant
positions were filled by the defendants who from that date and during the period of the
transactions complained of, was the civil and military chief of the city and district. In
October, the party in revolt had achieved success generally and on October 23rd 1892 the
government then in control of the territory was formally recognized as the legitimate
government of Venezuela by the US. The plaintiff was a US citizen who had constructed
a water work system for the City of Bolivar under a contract with the government and
was engaged in supplying the place in water.
Sometime after the entry of Hernandez, the plaintiff applied to him as the officer in
command for a passport to leave the city(Exit permit). The defendant refused his
request, and it was not until October 18th that a passport was given and Underhill left
the country. When he got to the US, Underhill filed this action seeking damages for the
detention caused by the refusal to grant the passport.

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 The US supreme court dismissed the action holding; ‘the acts complained of ,were the acts
of a military commander representing the authority of the revolutionary party as a government,
which afterwards succeeded and was recognized by the US…the acts of the defendant were the
acts of the government of Venezuela, and as such are not properly subject of adjudication
in the courts of another government…every sovereign state is bound to respect the
independence of every other sovereign state, and the courts of one country will not sit in
judgment on the acts of the government of another done within its own territory.
Redress of grievances by reason of such acts must be obtained through the means open to the
avail of by sovereign powers as between themselves.’
 Besides, diplomatic relations are established with recognized states and governments.
Although the establishment of diplomatic relations is one of the manifestations of
recognition it is not a necessary consequence of recognition because an entity can be
recognized as a state even in the absence of diplomatic relations of the recognizing state.
{Lecturer's Explanation: So We are saying two things here :One ; is that at the International
Level Diplomatic relations are established only with recognized states. We will only establish
diplomatic relations with a state that we do recognize. If we don't recognize that state we will
not establish diplomatic relations because diplomatic relations are interstate relations. So we
cannot establish interstate/intergovernmental relations with an entity that we do not recognize
or a government. That the first thing we are saying. Second; But the second thing that we are
also saying is the flip side of it :That the absence of the Diplomatic relations does not mean non-
recognition. The fact that Kenya does not have diplomatic relations for Example with Senegal,
does not mean we do not recognize Senegal.The fact that Kenya does not have diplomatic
relations for with Chad, does not mean we do not recognize Chad. Alright. Why ? Because the
establishment of diplomatic relations as I told is one: By mutual consent and also depends on
what is it that we are going to get. Because as I told you maintaining diplomatic mission out
there is a tall order financially. So why should we incur expenses maintaining a foreign mission
in Senegal, in Mauritania, if there is nothing of Mutual interest? But that, or the fact that we do
not have diplomatic relations with those states does not mean we do not recognize them. We still
recognize them. Alright.}

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 However by acknowledging the full status of hither to in determinate community the
recognizing states make possible the regularization of relations between the two on the
basis of the international law.
{Lecturer's Explanation: If you have been to Washington DC in the US one observes that the
Kenyan, Uganda , Tanzania Embassies are located in the Eastland's of Washington DC
compared to where the South Africa Embassy is located which is the Lavington of Washington
DC. That is why am telling you that the establishment of Diplomatic relations out there is not
an easy thing.
It is quite expensive. If any one of you is in Govt. one can confirm that the Ministry of Foreign
affairs takes a large Chunk of the National Budget. It more compared to what we spend on
Health}
Question:
i. What happens if one suffers injury in a country whereby Kenya for Example has no diplomatic
relations with? Now let me tell you this and we are going to see this: You are in Chad your
interests are injured, you seek reparation through the Chadian legal System and you are not
satisfied .Alright. The fact that Kenya does not have diplomatic relations with Chad does not
stop Kenya from espousing the claim on your behalf. Having Diplomatic relations is not a
requirement for Kenya to take up your claim at an International Level. Okay.
ii. Giving of Aid is it in any way based on Recognition? No,....Not at all. Everything has to do with
the foreign policy of the state concerned. Although of course the Extension of foreign Aid will
depend on good relations between the two countries concerned E.g: In 1990 Norway severing
diplomatic relations with Kenya. The course being Koigi Wamwere had sought Political refuge
in Norway and around July ,August 1990, he is arrested from Uganda and it is alleged he was
planning to stage a military Coup to oust Moi from power through Uganda because it is alleged
that he had a arms that he was preparing to use to stage the Military Coup. He is arrested and
when he is arrested the Norwegian ambassador,in Kenya says" Release Koigi Wamwere." Koigi
Wamwere is Kept in remand prison I think at Kamiti and the ambassador insists he be released.
Kenya Govt. says" No, he is not Going to be released he is a criminal and if you insist that he be
released ,you are interfering with our Internal Affairs" And we decided as a Government to
declare the Norwegian Ambassador Persona Non-Grata and we gave him 48 hours to leave the
Country. Before the 48 hours were over Norway reacted quickly by severing diplomatic relations

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with Kenya and withdrawing all economic assistance to the Kenyan Govt., to any Govt. public
organizations including individuals. I had gone to the U.S on a Norway Scholarship. My
scholarship was withdrawn when I was just two months in the U.S. I will never forget that. I
got a letter from the Ministry of Foreign affairs Norway stating the same. How I survived is
neither here nor there that is history but I finished,.. So back to the question you are asking. So
when Norway did that all the Economic and Development projects that Norway was Funding
ground to a halt and up to know some of them are still hanging, they are not yet completed.
We recently restored diplomatic Relations with Norway but not Economic Aid. There is ..Yes
some aspect of Economic Aid that is tied to Diplomatic relations. But sometimes as I said Again
it all depends on the foreign policy of a particular Country. Like now the US AID has specific
projects ,specific activities that is funding in this country.
And in fact I don't know if you are aware because of "prevailing insecurity in Kenya "many of
the US AID activities have been shifted to South Africa. That is as I said a matter of foreign
policy and it has nothing to do with diplomatic relations. Here we are with a strong diplomatic
relation with the US but they think that USAID, United States International Development
Agency ,affairs and activities should be based in South Africa. That is where they work from.
But here in Kenya they are now left with scouting staff, a staff that can be rounded up very
quickly in the case Al-shabaab takes over and be airlifted out of Kenya may be to Uganda or
Tanzania for their safety. Okay.}

ENDZ OF LESSON TEN@#$%^&*~~~**"""::****&&&%%%$#$##@

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 THE LAW OF TREATIES
Requirements .
*1969 Vienna Convention on the Law of Treaties
TOPIC 7: TREATY MAKING
Introduction
TREATY MAKING SCENARIOS
a) If the international community wishes to enact a fundamental, organic, constitutional law ...
it employs the treaty.
b) If two states wish to put on record their adherence to the principle of the twelve mile limit
of the territorial sea ... they use a treaty. If, further, they wish to enter into a bargain that
derogates from that principle, again they use a treat.
c) If for example Denmark wishes to sell to the United States of America her West Indian
possessions they do so by treat.
d) If for example Kenya wishes to buy natural gas from Tanzania, in order to boost its energy
sector, they will do so by treaty.
e) And if the international community desires to create an international organization, such as
the International Labour Organization (ILO), which resembles the corporation of private law,
it is done by treaty.
The above excerpt illustrates the functions and relevance of treaties in inter-state relations. Many
aspects of international relations and transactions are based on agreements between parties
that regulate such relations and/or transactions. Such agreements create rights and duties under
international law for the parties thereto, whatever the field of interaction.
Such international agreements are commonly called TREATIES , although they may also be
termed conventions, pacts, protocols, charters, accords, or exchange of notes .
What is important, however, is the manifest intent of the parties to be bound by their agreement
and, hence, the obligatory character of the terms thereof, and not its nominal designation, that
determines whether a binding rule of international law has been created.

WHAT IS A TREATY?

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What, then, is a treaty?
Article 2 (1) (a) of the 1969 Vienna Convention on the Law of Treaties defines a treaty as “an
international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whether its particular designation."
Note the key elements of the definition, namely:-
i) ''an international agreement" - To be a treaty an agreement has to have an international
character; it must be an agreement between international law-subjects. Hence, an agreement
between a state and a TNC is not a treaty:
ii) "concluded between States" - The 1969 Vienna Convention on the Law of Treaties applies
to agreements concluded between States. Agreements between States and international
organizations or among international organizations, inter se, are governed by the 1986 Vienna
Convention on the Law of Treaties between States and International Organizations or Between
International Organizations . Agreements between States and private individuals or corporations
are not governed by international law, but by the law of contracts;
iii) "in written form" - The Convention does not apply to oral agreements . So, while states may
undertake binding international agreements without concluding a written instrument, such
agreements may be governed by general principles of international law and not the
Convention/treaty ;
iv) "governed by international law" - This phrase embraces the element of an intention to
create obligations under international law. If there is no such intention, the instrument will
not be a treaty. Intention must be gathered from the terms of the instrument itself and the
circumstances of its conclusion , and not from what the parties subsequently say was their
intention;
v) "whether embodied in a single instrument or in two or more related instruments" - This
phrase recognizes that the classic form of a treaty is a single instrument - has often been
joined by treaties drawn in less formal ways, such as Exchange Of Notes . These play an
increasingly important role. An exchange of notes usually consists of an initiating note and a
reply. Cf. 1976 Kenya/Tanzania Maritime Delimitation Agreement;

vi) "whatever its particular designation'' - Most treaties are designated in unsystematic ways.

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In most cases, it is more a matter of practice of international organizations or groups of states, or
political preference, which determines how a treaty is named. However, in itself the name does
not determine the status of the instrument; what is decisive is whether the negotiating states intend
the instrument to be binding in international law. Although it is reasonable to assume that an
instrument called a treaty, agreement or convention is a treaty, one should nevertheless
examinethe text to make sure.
Related Instruments
a) MoU(Memorandum of Understanding) - One must be extremely careful in assessing that the
status of an instrument called MoU, since some treaties have been referred to as MoUs. Only by
studying carefully all the terms of an MoU can one determine its status. The general rule is that
since an instrument called MoU may be a treaty or an MoU, its status will be clear by a specific
provision, such as that it shall be legally binding on the parties.
b) Exchange of Notes - These pose the same problem as the name Memorandum of
Understanding since they may constitute either a treaty or an MoU. If the exchange is intended to
be a treaty, it is customary to provide expressly that it shall constitute an agreement between the
governments. If intended to be an MoU, it is usual to specify that the exchange records the
understanding of the two governments.
c) Protocol - Although some stand - alone treaties have been called Protocols, in contemporary
state practice, that name is generally used for supplementary treaties or amending treaties . It is
also used for other quite different purposes, such as for documents which are annexed to a treaty
and are an integral part thereof.
d) Optional Protocol - This name is used for a treaty which is closely associated with, and usually
adopted at the same time as, a treaty. The term "optional" is used to indicate that a party to the
main treaty does not have to become a party to the Protocol . The most common Optional
Protocols are on settlement of disputes under the main treaty .
e) Charter, compact, covenant or even declaration – for instance, the 1984 China – UK
Joint Declaration on the Future of Hong Kong is a treaty registered as such with the UN
by both parties; the title was chosen for political reasons.

Types of Treaties
Depending on the subject, the treaty may be either bilateral or multilateral. It is bilateral
when it is between two states and multilateral when it is between three or more states .There are,

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however, bilateral treaties where two or more states form one party, and another state or states
the other party.
Most bilateral treaties are much like contracts, creating legal obligations that are relatively
narrow in scope and strictly limited to the parties involved in the negotiations. Some multilateral
treaties are considered to be "law-making" treaties in that they create general norms for
future conduct (create obligations valid erga omnes - for the whole world). Almost like
international legislation, these "law-making" treaties are often more broadly applicable and are
open to all States, including States that did not participate in their negotiations.
In some cases, these treaties may codify and develop customary law. The 1969
ViennaConvention on the Law of Treaties is generally regarded as a partial codification of
customary
international law governing international agreements between States. Similarly, the 1982
United Nations Convention of the Law Of the Sea (UNCLOS) both codified existing
customaryinternational law and created new concepts and principles regarding the utilization of
ocean
space.
Performance of Treaties
The fundamental principle of treaty law is pacta sunt servanda , which stipulates that every
treaty in force is binding upon the parties to it and must be performed by them in good faith.
The obligation of good faith is invariable, underlying the observance of treaties by all parties to
them.
A party does not enter into any agreement or understanding with another party unless there is an
intention to carry it out to the letter and in the spirit.Without the existence of an underlying
principle the promises will be kept, instate relations would be impossible to maintain.The
principle of pacta sunt servanda , which underwrites the integrity of treaties as a whole,
presupposes that the pact should be in force, that is, valid according to the ordinary rules
governing the conclusion of a treaty. This principle is provided for under Article 26 of the
VCLT which provides that every treaty in force is binding upon the parties to it and must be
performed in good faith. It is followed in Article 27 by its corollary, that is, a party may not
invoke the provisions of its internal law as justification for its failure to perform a treaty.

PART III.
OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES
SECTION 1. OBSERVANCE OF TREATIES
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Article 26 “Pacta sunt servanda”
Every treaty in force is binding upon the parties to it and must be performed by them in
"Limit on Sovereignty"
Whereas States have the full capacity and sovereign rights to conclude agreements on the diverse
subjects of their relations, agreements concluded in violation of a norm of jus cogens and the
provisions of the UN Charter will be void.
Under Article 53 , a treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law.
For the purposes of the Convention, a peremptory norm of general international law is a norm
accepted and recognized by the international community as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of
generalinternational law having the same character .
Even if part of a treaty conflicts with an existing jus cogens, the whole of the treaty, and not
just the offending part, will be void. Article 53 must be read with Article 64 which provides that
if a new peremptory norm of international law emerges, any existing treaty which is in conflict
with that norm becomes void and terminates. Since this provision is not retrospective, the treaty
is invalid only from the time the new norm is established.
Article 53 states "A treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. For the purposes of the present Convention, a peremptory
norm of general international law is a norm accepted and recognized by the international
community of States as a whole as a norm from which no derogation is permitted and which can
be modified only by a subsequent norm of general international law having the same character. "

Article 64 states that "If a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates."

Treaty Making Process

Four basic steps are inherent in the conclusion of any international agreement, that is,
i. Identification of needs and goals,
ii. Negotiation,
iii. Adoption and signature, and
iv. Ratification.

1. Identification of Needs and Goals

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Before an international agreement can be concluded, certain preliminary steps must be taken.
First, the need for action must be discovered. For instance, in the field of environment, there
must be data that demonstrates the adverse impact of a particular substance on the environment.
This is important for two, reasons.
a) First, many important environmental problems have gone unaddressed for many years before
sufficient data was accumulated to convince the international community to address them.
b) Second, because there is neither a prescribed process for identifying treaty needs, nor any
group of actors vested with primary responsibility for doing so, need identification has proven an
important strategy for non-State actors to influence the international environmental law-making
process.
2. Negotiations
In the case of a bilateral treaty, a State may initiate the treaty-making process simply by inviting
another State to negotiate on a particular issue. Negotiations may then proceed, and a binding
agreement be concluded, through a simple exchange of diplomatic correspondence: face to face
negotiations between the parties may not be required.
Although there is no prescribed process for creating a multilateral treaty, recent State practice
has produced a somewhat standardized negotiating procedure. Negotiations may be initiated by
individual States; sometimes a State may recommend that an international organization such as
the UNGA or the ECOSOC establish a committee or convene an international conference to
consider a particular issue.

The host organization will then organize preparatory committees, working groups of technical
and legal experts, scientific symposia and preliminary conferences.The organizing body may
invite and accept comments from NGOs, scientific unions and other private groups.During these
informal discussions, information is disseminated, the preliminary positions of interested States
are established, the parameters of a possible agreement are narrowed, and the slow process of
building international consensus begins.
Depending on the subject, this process of informal exchange may take a considerable period of
time before a conference of plenipotentiaries (representatives with authority to approve an
international agreement on behalf of their respective governments) is convened.In the interim,
the host government or organization, or some other qualified international body such as the
International Law Commission (ILC), will develop a draft convention to serve as the basis for
discussions at the plenary conference. Generally, draft conventions are prepared with significant

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participation by the interested parties, and many disagreements among States are likely to be
ironed out before the final conference convenes.
At the plenipotentiary conference, delegates will seek to resolve their remaining disputes, and
produce a final, authoritative version of the treaty, an authentic text. The conclusion and
subsequent validity of treaties depend on various conditions.
i.) The party to the treaty must have the capacity
ii. )Its representative must have the competence to express its consent to be bound by the treaty,
iii.) The treaty itself must be legal and conform to the requirements as to form.

Under Article 6 of the Convention , every Sate possesses capacity to conclude treaties. What is
a "state?" A sovereign independent state as a subject of international law.
Under Article 7 of the Convention , by virtue of their functions, the following are considered as
representing their State and, hence, competent to express the consent of their State to be bound
by a treaty':
a) Heads of State, heads of government and ministers for foreign affairs , for the purpose of
performing all acts relating to the conclusion of a treaty;
b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their
State and the State to which they are accredited:

c) Representatives accredited by States to an international conference or to an international

organization or one of its organs , for the purpose of adopting the text of a treaty in that
conference, organization or organ.

Other persons must, however, produce appropriate "full powers" before being accepted
ascompetent to represent their States for purposes of negotiating, adopting or authenticating the
text of a treaty and for expressing the consent of the State to be bound by the treaty.
Article 7 of the Convention states:
1. A person is considered as representing a State for the purpose of adopting or authenticating
the text of a treaty or for the purpose of expressing the consent of the State to be bound by a
treaty if: a) he produces appropriate full powers; or b) it appears from the practice of the
States concerned or from other circumstances that their intention was to consider that person as
representing the State for such purposes and to dispense with full powers.

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2. In virtue of their functions and without having to produce full powers, the following are
considered as representing their State: a) Heads of State, Heads of Government and Ministers
for Foreign Affairs, for the purpose of performing all acts relating to the conclusion of a treaty;
b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the
accrediting State and the State to which they are accredited; c)representatives accredited by
States to an international conference or to an international organization or one of its organs, for
the purpose of adopting the text of a treaty in that conference, organization or organ.

Article 2 Use of terms

1. For the purposes of the present Convention: a) “treaty” means an international
agreement concluded between States in written form and governed by international
law, whether embodied in a single instrument or in two or more related instruments
and whatever its particular designation; b) “ratification”, “acceptance”, “approval”
and “accession” mean in each case the international act so named whereby a State
establishes on the international plane its consent to be bound by a treaty; c) “full
powers” means a document emanating from the competent authority of a State
designating a person or persons to represent the State for negotiating, adopting or
authenticating the text of a treaty, for expressing the consent of the State to be bound
by a treaty, or for accomplishing any other act with respect to a treaty;

Article 2(1) (c) of the Convention defines "full powers." Unless withdrawn, full powers remain.
valid so long as there is an outstanding act covered by them
Under Article 8, an act relating to the conclusion of a treaty which is performed by a person not
competent under Article 7 is without legal effect unless it is confirmed by the State involved
afterwards. For instance, ratification of the treaty will constitute confirmation, as will the
conduct by the state which evidences the acceptance of it, such as publication or
itsimplementation.
Article 8 states: An act relating to the conclusion of a treaty performed by a person who cannot
be considered under article 7 as authorized to represent a State for that purpose is without legal
effect unless afterwards confirmed by that State.
The validity of the treaty will be governed by the rules of international law. This is because
international law is concerned only with the external manifestations of the expression of a
State's consent to be bound, and the act of a competent agent will bind this State even if he has
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not complied with a prescription of internal law.
Accordingly, under Article 46, a State may not invoke the fact that its consent to be bound has
been expressed in violation of a provision of its internal law unless that violation was manifest
and concerned a rule of its internal law of fundamental importance.
Article 46 states:
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith.
Under Article 47 , an omission by the representative to observe a specific internal restriction on
his authority may not be invoked as invalidating consent unless the restriction was previously
notified to other negotiating States.

Article 47 : Specific restrictions on authority to express the consent of a State

If the authority of a representative to express the consent of a State to be bound by
a particular treaty has been made subject to a specific restriction, his omission to
observe that restriction may not be invoked as invalidating the consent expressed by
him unless the restriction was notified to the other negotiating States prior to his
expressing such consent.

3. Adoption and Signature

Generally, the adoption of the text of a treaty takes place by the agreement of all the States
participating in the negotiations. If the parties which took part in the drawing up of a treaty have
not reached agreement on the form and content of the treaty, there is obviously no consensus ad
idem and, hence, no text to be adopted.
The rules on adoption are in Article 9 which provides that the adoption of the text of a
treatytakes place by the consent of all the States participating in its drawing up, except the

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adoption of a treaty at an international conference, In the latter case, adoption takes place by the
vote of 2/3 of the States present and voting, unless by the same majority, they decide to apply a
different rule.

Article 10 provides for authentication, the process by which the final text of a treaty is
established, consisting of certification that the document contains the definitive and authentic
text and is not susceptible to alteration.

Article 10 Authentication of the text

The text of a treaty is established as authentic and definitive:
a) by such procedure as may be provided for in the text or agreed upon by the States
participating in its drawing up; or
b) failing such procedure, by the signature, signature ad referendum or initialing by the
representatives of those States of the text of the treaty or of the Final Act of a conference
incorporating the text.

The text of a treaty is established as authentic by such procedure as may be provided for in the
text or agreed upon by the parties or by the signature, signature ad referendum, or initialing by
the representatives of the negotiating States. The authentication of the text of the treaty in the
form which the parties may later ratify may be done in a number of ways, of which initialing or
signing are the common ones.
The method to be used is a matter for the negotiating States to agree upon. In the case of treaties
adopted by international organizations, the question of an authentic text is usually left to the
officials of the organization itself, while international conferences often follow the practice of
embodying the text of the treaty' in their Final Act.
The Final Act is the title of the instrument which records the winding up of the
conferencesummoned to conclude a treaty. It usually summarizes the terms of reference of the
conference and enumerates the States or heads of state represented the delegates who took part in
the discussions and the instruments adopted by the conference. It also sets out resolutions,
declarations, and recommendations adopted by the conference which were not incorporated as
provisions of the treaty. Sometimes, it also contains interpretations of provisions in the formal

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instruments adopted by the conference. The Final Act is signed, but does not normally require
to be ratified.

4. Expression of Consent to be Bound - Ratification, Accession, etc

Articles 11 - 17 of the Convention deal with the various means by which the consent of a State
to be bound by a treaty can be expressed. A State does not consent to be bound by a treaty
merely by adopting or authenticating it text or by signing a Final Act; it must do something
further.

Article 11 lists the various means by which consent may be expressed as signature, exchange of
instruments constituting a treaty, ratification, acceptance or approval, accession, or by any
other agreed means.

Article 11 Means of expressing consent to be bound by a treaty

The consent of a State to be bound by a treaty may be expressed by signature, exchange
of instruments constituting a treaty, ratification, acceptance, approval or accession, or by
any other means if so agreed.

Under Article 12 , signature expresses the consent to be bound when:

a) the treaty so provides,
b) it is otherwise established that the negotiating States were so agreed, or
c) the intention of a State that signature should express its consent is apparent from the full
powers of its representative or was expressed during the negotiations.

Article 12 : Consent to be bound by a treaty expressed by signature

1. The consent of a State to be bound by a treaty is expressed by the signature of its
representative when: a) the treaty provides that signature shall have that effect; b) it is
otherwise established that the negotiating States were agreed that signature should have that
effect; or c) the intention of the State to give that effect to the signature appears from the full
powers of its representative or was expressed during the negotiation.
2. For the purposes of paragraph 1: a) the initialing of a text constitutes a signature of the
treaty when it is established that the negotiating States so agreed; b) the signature ad
referendum of a treaty by a representative, if confirmed by his State, constitutes a full
signature of the treaty.

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Many multilateral treaties, especially those concluded within the UN, or at a conference
convened by the UN, will provide that they will be "open to signature" until a specified date,
after which signature will no longer be possible. Thereafter a State may only accede.

Under Article 13 -Exchange of instruments constituting the treaty, as a means of expression of

consent to be bound, shall have effect if the instruments themselves so provide or if the states
parties so agreed.

Article 13 Consent to be bound by a treaty expressed by an exchange of instruments

constituting a treaty
The consent of States to be bound by a treaty constituted by instruments exchanged between
them is expressed by that exchange when: (a) the instruments provide that their exchange
shall have that effect; or (b) it is otherwise established that those States were agreed that the
exchange of instruments should have that effect.

Quite often, the notes will provide that the agreement constituted by the exchange of notes will
not enter into force until each has informed the other that its constitutional formalities have been
completed. In the vast majority of cases, the exchange is between two States, i.e., in the case of
bilateral treaties.

Ratification is defined by Article 2(1) (b) of the Convention as the international act whereby a
State establishes on the international plane its consent to be bound.
Ratification consists of
a) the execution of an instrument of ratification by the executive, and
b) either its exchange for the instrument of ratification of the other State, in the case of a bilateral
treaty, or its lodging with the depositary, in the case of a multilateral treaty
The rationale for ratification is threefold.
i. ) First, the treaty may require legislation before it enters into force for the State.
ii.)Second, the constitution may require parliamentary approval, or some other procedure,
like publication, before the State can ratify the treaty.
iii.)Finally, the State may need time to consider the implications of the treaty before it

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accepts to be bound by its provisions - some kind of breathing space that allows time for
reflection, even if the State might have taken an active part in the negotiations.

Under Article 14 of the Convention, State consent to be bound by a treaty is expressed by

ratification when
a) The treaty so provides,
b) It is otherwise established that the negotiating States were agreed that ratification
should be required,
c) The representative of the State has signed the treaty subject to ratification (i.e., signature ad
referendum), or
d) The intention of the State to sign subject to ratification appears from the full powers of
its representative or was expressed during the negotiations.
The Convention does not say whether in the absence of a ratification clause, every
treatyrequires ratification. However, the popular view is that where the treaty is silent on
ratification,
then the same is not necessary to express the State's consent to be bound by the treaty. Besides,
signature of a treaty imposes no obligation to ratify though a State should refrain from signature
if it has little intention of ratifying.
Consent to be bound by a treaty is expressed by acceptance or approval under conditions
similar to those which apply to ratification.
Accession is the process by which non-negotiating and non-signatory States
subsequentlybecome parties to a treaty.Under Article 15 , the consent of a State to be bound by
a treaty is expressed by the means of accession if
a) The treaty itself so provides,
b) It is otherwise established that the negotiating States were agreed that consent could
be so expressed; or
c) All the parties have subsequently agreed that a State may express its consent by such
means.
Accession may occur before or after the treaty has entered into force. It should be noted,
however, that no State has a right to accede unless the treaty so provides or the parties agree.
Besides, if the treaty provides that a State may accede only after a certain date or event, but an

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instrument of accession is received before then, the depositary will inform the State that the
instrument will be held until that date has arrived or the event has happened. Until then, the
instrument will not be counted for the purpose of calculating when the conditions for entry into
force have been met.

Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or

accession establish the consent of a State to be bound by a treaty upon:
a) Their exchange between the contracting States,
b) Their deposit with the depositary, or
c) Their notification to the contracting States or to the depositary, if so agreed.

The penultimate stage in the treaty making process is the period between signature of the treaty
(where it is subject to ratification) and entry into force. In the period prior to the entry into force
of a treaty, the acts of adopting, signing and consenting to be bound will create certain rights and
obligations for the negotiating States, and for any depositary. The most obvious relate to those
matters which have to be attended to so that the treaty can enter into force.
Article 18 requires a State to refrain from acts which would defeat the object and purpose of
treaty before its entry into force for that State. When the treaty is subject to ratification,
acceptance or approval, this obligation lasts until the State has made clear its intention not to
become a party. States which have signed a treaty requiring ratification have thereby placed
certain limitations upon their freedom of action in respect to the subject matter of the treaty
during the period which precedes the entry into force of the treaty.
The obligation under Article 18 does not, however, prohibit a State from withdrawing its
consent to be bound before the treaty enters into force. The obligation under the article is to
refrain from acts which would defeat the object and purpose of the treaty before its entry into
force for the State.It relates, therefore, to the substance of the treaty, rather than the procedure
by which the State consents to be bound or by which the treaty enters into force.
Mere withdrawal of an instrument will not, in itself, be a breach of the obligation in Article 18,
since it must have the effect of defeating the object and purpose of the treaty.

Reservations

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When a State expresses, its consent to be bound by a treaty, it is allowed to indicate that it is
not prepared to accept a particular term or provision thereof or that it wishes some other
variation in its favour, unless this is prohibited by the treaty itself or unless the treaty does not
include the particular modification or variation contemplated by the State party to the treaty or
unless the modification proposed is incompatible with the object and purpose of the treaty.
Article 2(1) (d) defines a reservation as a unilateral statement, however phrased or
named,made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in
their application to that State. Although a reservation is unilateral in the sense that it has not been
agreed by the negotiating States, two or more States can agree to make the same reservation.
Reservations are different from interpretative declarations. The latter are unilateral
declarations, however phrased or named, made by a State or by an international organization,
whereby that State or organization purports to clarify the meaning or scope attributed by the
declarant to the treaty or certain specific provisions thereof.
During the course of the negotiation of a multilateral treaty there will often be differences of
view as to the meaning of a particular provision.If these cannot be solved, a delegation may
make a formal statement expressing the interpretation favoured by its government. An
interpretative declaration will become an element in the interpretation of the treaty, and,
provided it is not a disguised reservation, the rules on interpretation will apply to it. If other
parties do not make conflicting declarations or indicate their disagreement, they may be regarded
as having tacitly accepted it.
The 1969 Vienna Convention on the Law of Treaties does not distinguish between bilateral
and multilateral treaties, even for reservations. One therefore has to look to basic principles and
state practice in examining the effect of reservations and interpretative declarations made
inconnection with bilateral treaties. Although the Convention is silent on the matter, a
reservation cannot be made to a bilateral treaty. Since there are only two possible parties, a
bilateral treaty is more like a contract, all the terms of which must be agreed before it can bind
the parties.
Making a reservation to a bilateral treaty amounts, therefore, to a request for a modification to
the treaty, usually in favour of the requesting State. The treaty cannot, therefore, be binding
unless and until the other State accepts.

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The reservations regime of the Convention is set out in Articles 19 – 23, and may be
summarized as follows:-
1. States are entitled to formulate a reservation on signature or ratification of treaty unless the
treaty prohibits reservations, or the treaty provides that only specified reservations, which do
not include the reservation in question, may be made, or the reservation is incompatible with
the object and purpose of the treaty.
2. Where the treaty is silent on reservations, States are entitled to formulate reservation unless
the reservation is incompatible with the object and purpose of the treaty. This is the test laid
down by the ICJ in the:Advisory Opinion in the Reservations to the Convention on
GenocideCase (1951) ICJ Rep. 11
Advisory Opinion in the Reservations to the Convention on Genocide Case (1951) ICJ Rep. 11
The question concerning reservations to the Convention on the Prevention and Punishment of the
Crime of Genocide had been referred for an advisory opinion to the Court by the General
Assembly of the United Nations (G.A. resolution of November 16, 1950) in the following terms:
"In so far as concerns the Convention on the Prevention and Punishment of the Crime of
Genocide in the event of a State ratifying or acceding to the Convention subject to a reservation
made either on ratification or on accession, or on signature followed by ratification: By 7 votes
to 5 the Court gave the following answers to the questions referred to:
On Question I: Can the reserving State be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by one or more of the parties to the
Convention but not by others? A State which has made and maintained a reservation which has
been objected to by one or more of the parties to the Convention but not by others, can be
regarded as being a party to the Convention if the reservation is compatible with the object and
purpose of the Convention; otherwise, that State cannot be regarded as being a party to the
Convention.
On Question II: If the answer to question I is in the affirmative, what is the effect of the
reservation as between the reserving State and:
(a) The parties which object to the reservation? if a party to the Convention objects to a
reservation which it considers to be incompatible with the object and purpose of the Convention,
it can in fact consider that the reserving State is not a party to the Convention;
(b) Those which accept it? if, on the other hand, a party accept the reservation as being
compatible with the object and purpose of the Convention, it can in fact consider that the
reserving State is a party to the Convention;

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On Question III: What would be the legal effect as regards the answer to question I if an
objection to a reservation is made:
(a) By a signatory which has not yet ratified? an objection to a reservation made by a signatory
State which has not yet ratified the Convention can have the legal effect indicated in the reply to
Question I only upon ratification. Until that moment it merely serves as a notice to the other
State of the eventual attitude of the signatory State;
(b) By a State entitled to sign or accede but which has not yet done so?" an objection to a
reservation made by a State which is entitled to sign or accede but which has not yet done so is
without legal effect.
The first question refers to whether a State which has made a reservation can, while maintaining
it, be regarded as a party to the Convention on Genocide, when some of the parties object to the
reservation. In its treaty relations, a State cannot be bound without its consent. A reservation can
be effected only with its agreement. On the other hand, it is a recognized principle that a
multilateral Convention is the result of an agreement freely concluded.
To this principle was linked the notion of integrity of the Convention as adopted, a notion which,
in its traditional concept, involved the proposition that no reservation was valid unless it was
accepted by all contracting parties. This concept retains undisputed value as a principle, but as
regards the Genocide Convention, its application is made more flexible by a variety of
circumstances among which may be noted the universal character of the United Nations under
whose auspices the Convention was concluded and the very wide degree of participation which
the Convention itself has envisaged. This participation in conventions of this type has already
given rise to greater flexibility in practice.
More general resorts to reservations, very great allowance made to tacit assent to reservations,
the admission of the State which has made the reservation as a party to the Convention in
relation to the States which have accepted it, all these factors are manifestations of a new need
for flexibility in the operation of multilateral conventions. Moreover, the Convention on
Genocide, although adopted unanimously, is nevertheless the result of a series of majority votes -
which may make it necessary for certain States to make reservations.
In the absence of an article in the Convention providing for reservations, one cannot infer that
they are prohibited. In the absence of any express provisions on the subject, to determine the
possibility of making reservations as well as their effects, one must consider their character, their
purpose, their provisions, their mode of preparation and adoption. The preparation of the
Convention on Genocide shows that an undertaking was reached within the General Assembly

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on the faculty to make reservations and that it is permitted to conclude therefrom that States,
becoming parties to the Convention, gave their assent thereto.
What is the character of the reservations which may be made and the objections which may be
raised thereto? The solution must be found in the special characteristics of the Convention on
Genocide. The principles underlying the Convention are recognized by civilized nations as
binding on States even without any conventional obligation. It was intended that the Convention
would be universal in scope.
Its purpose is purely humanitarian and civilizing. The contracting States do not have any
individual advantages or disadvantages nor interests of their own, but merely a common interest.
This leads to the conclusion that the object and purpose of the Convention imply that it was the
intention of the General Assembly and of the States which adopted it, that as many States as
possible should participate. This purpose would be defeated if an objection to a minor
reservation should produce complete exclusion from the Convention.
On the other hand, the contracting parties could not have intended to sacrifice the very object of
the Convention in favour of a vague desire to secure as many participants as possible. It follows
that the compatibility of the reservation and the object and the purpose of the Convention is the
criterion to determine the attitude of the State which makes the reservation and of the State
which objects. Consequently, question I, on account of its abstract character, cannot be given an
absolute answer. The appraisal of a reservation and the effect of objections depend upon the
circumstances of each individual case.
The Court then examined question II by which it was requested to say what was the effect of a
reservation as between the reserving State and the parties which object to it and those which
accept it. The same considerations apply. No State can be bound by a reservation to which it has
not consented, and therefore each State, on the basis of its individual appraisals of the
reservations, within the limits of the criterion of the object and purpose stated above, will or will
not consider the reserving State to be a party to the Convention.
In the ordinary course of events, assent will only affect the relationship between the two States. It
might aim, however, at the complete exclusion from the Convention in a case where it was
expressed by the adoption of a position on the jurisdictional plane: certain parties might consider
the assent as incompatible with the purpose of the Convention, and might wish to settle the
dispute either by special agreement or by the procedure laid down in the Convention itself.
The disadvantages which result from this possible divergence of views are real. They could have
been remedied by an article on reservations. They are mitigated by the common duty of the

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contracting States to be guided in their judgment by the compatibility or incompatibility of the
reservation with the object and purpose of the Convention. It must clearly be assumed that the
contracting States are desirous of preserving intact at least what is essential to the object of the
Convention.
The Court finally turned to question III concerning the effect of an objection made by a State
entitled to sign and ratify but which had not yet done so, or by a State which has signed but has
not yet ratified. In the former case, it would be inconceivable that a State possessing no rights
under the Convention could exclude another State. The case of the signatory States is more
favorable. They have taken certain steps necessary for the exercise of the right of being a party.
This provisional status confers upon them a right to formulate as a precautionary measure
objections which have themselves a provisional character. If signature is followed by ratification,
the objection becomes final. Otherwise, it disappears. Therefore, the objection does not have an
immediate legal effect but expresses and proclaims the attitude of each signatory State on
becoming a party.

3. Reservations to a restricted multilateral treaty require acceptance by all parties thereto, and
reservations to a constituent instrument of an international organization require the acceptance of
the competent organ of the organization, unless the treaty otherwise provides.
4. In other cases, and unless the particular treaty otherwise provides,
i. The express or tacit acceptance of a reservation by another contracting State constitutes
the reserving State a party to the treaty in relation to that other State, tacit acceptance
being assumed if no objection is raised within specified period;
ii. An objection to a reservation by another contracting State does not preclude the entry
into force of the treaty as between the objection and reserving States unless a contrary
intention is definitely expressed by the objecting State; and
iii. An act expressing a State consent to be bound by treaty containing a reservation is
effective as soon as at least one other contracting State has accepted the reservation.
Unless the treaty otherwise provides, a reservation is considered to have been accepted
by a State if shall have raised no objection to the reservation by the end of a period of
twelve months after it was notified of the reservation or by the date on which it
expressed its consent to be bound by the treaty, whichever is later.
Article 21 of the Convention deals with the legal effects of reservations and of objections
thereto. A reservation which has been established with regard to another party

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a) modifies for the reserving State in its relations with that other party the provisions of
the treaty to which the reservation relates to the extent of the reservation, and
b) Under Article 21 (2)-modifies those provisions to the same extent for that other party in
its relations with the reserving State. However, the reservation does not modify the
provisions of the treaty for the other parties to the treaty as between themselves.
Article 21 (3) provides that when an objecting State has not opposed the entry into force of the
treaty between it and the reserving State, both States are not affected by the provisions to
which the reservation relates.
Under Article 22 , a State party to a treaty may, at any time, withdraw its reservations or its
objection thereto and the consent of any State which has accepted the reservation is not
required for its withdrawal unless the treaty otherwise provides.A withdrawal becomes effective
only after notice of it has been received by the party concerned or, in the case of withdrawal of
an objection, only after notice of it has been received by the State which forwarded the
reservation.
Under Article 23 any reservation, its express acceptance, an objection to it or its withdrawal
must be in writing and communicated to the contracting State and any other States entitled to
become parties to the treaty.
The principle of pacta sunt servanda , which underwrites the integrity of treaties as a whole,
presupposes that the pact should be in force, that is, valid according to the ordinary rules
governing the conclusion of a treaty. This principle is provided for under Article 26 which
provides that every treaty in force is binding upon the parties to it and must be performed in good
faith. It is followed in Article 27 by its corollary, that is, a party may not invoke the provisions
of its internal law as justification for its failure to perform a treaty.

Thus, if a new law or modification to existing law is needed in order to carry out the obligations
which will be laid upon it by the treaty, a negotiating State should ensure that this is done at least
by the time the treaty enters into force for it. If this is not done, the State may risk being in
breach of its treaty obligations and be liable in international law for any injury that may be
suffered by another State. Besides, a State cannot plead a change of government to excuse
failure to implement a treaty. Since the treaty is entered into on behalf of the State, the new
government must also perform the treaty.
Interpretation of Treaties
Despite the expertise and care that are involved in drafting, there is no "treaty which cannot

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raise some question of interpretation. Many disputes submitted to international adjudication
involve some problem of treaty interpretation. Just as the interpretation of legislation is the
constant concern of any government lawyer, treaty interpretation forms a significant part of the
daily work of a foreign ministry advisor. The interpretation of treaties, like that of any legal
instrument, depends on what the aim and goal of treaty interpretation are.
There are, however, three main approaches to treaty interpretation.
i. Subjective Approach : First, there is the approach which asserts that the primary, and
indeed only, aim and goal of treaty interpretation are to ascertain the intention of the
parties to the treaty.
ii. Objective Approach : The second approach starts from the proposition that there must exist a
presumption that the intention of the parties is reflected in the text of the treaty which they have
drawn up, and that the primary goal of treaty interpretation is to ascertain the meaning of the
text.
iii. Teleological Approach : Finally, there is the approach which maintains that the decision
maker must first ascertain the object and purpose of a treaty and then interpret it so as
to give effect to the object and purpose.
These three approaches are referred to as the "subjective" (intentions of the parties and founding
fathers), the "objective" (the textual/ordinary meaning of words), and the "teleological" (aims
and objectives) approaches. These approaches are not, in practice, mutually exclusive. Placing
undue emphasis on the text, without regard to what the parties intended, or what the parties are
believed to have intended regardless of the text, or on the perceived object and purpose in order
to make the treaty more effective, irrespective of the intention of the parties, is unlikely to
produce a satisfactory result.
SUBJECTIVE APPROACH
The subjective approach looks primarily to the actual intentions of the parties. In
theinterpretation of treaties, the principle question under this approach is concerned with the
"real
will" of the parties. It attempts to elucidate the text of the treaty, which is seen as merely an
expression of the will of the parties, by reference to the whole course of negotiations leading to
the conclusion of the treaty, and seems to investigate the actual intentions of the parties at the
time of the adoption of the final text.
OBJECTIVE APPROACH

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The objective (textual/literal) approach places the principal emphasis on the actual words of the
treaty. While the subjective approach treats as the first question, "what did the parties really
mean?," the objective approach takes the first question as, '"what did the parties say?" Advocates
of this approach admit that extrinsic sources may be used if the text is ambiguous or if the
meaning of the words leads to a conclusion which is obviously absurd or unreasonable. The
jurisprudence of the International Court of Justice supports the textual approach. For instance, in
the UN Admissions Case (1948) ICJ Rep. 57,(Based on interpretation of Article 4 of the UN
Charter )
UN Admissions Case (1948) ICJ Rep. 57,
Article 4 1. Membership in the United Nations is open to all other peace-loving states which
accept the obligations contained in the present Charter and, in the judgment of the Organization,
are able and willing to carry out these obligations. 2. The admission of any such state to
membership in the United Nations will be effected by a decision of the General Assembly upon
the recommendation of the Security Council. The Court held that the provisions of Article 4(1)
of the Charter of the UN were exhaustive and that no member of the Security Council or the
General Assembly could attach conditions to the admission to a new member beyond those in the
paragraph. By Article 4(1) of the UN Charter, membership to the UN is open to "peace-loving
States which accept the obligations contained in the present Charter and, in the judgment of the
Organization, are able and willing to carry out these obligations." Under paragraph 2, the
admission of any such State to membership in the United Nations will be effected by a decision
of the General Assembly upon the recommendations of the Security Council. A number of
applicants for admission to the UN were vetoed by the Soviet Union for political reasons, and the
Soviet Union stated that it would not veto the admission of, for instance, Italy, if other Security
Council members would vote for admission of applicants supported by the Soviet Union.
The General Assembly asked the Court for an advisory opinion as to whether members of the
Council or the Assembly could attach conditions to the admission of a new member beyond
those in paragraph 1, and especially if an affirmative vote could be made conditional upon the
admission of any other applicant.
The Court said:
The text of paragraph 1, by the enumeration which it contains and the choice of terms, clearly
demonstrates the intention of its authors to establish a legal rule which, while it fixes the
conditions of admission, determines also the reasons for which admission may be refused; for the
text does not differentiate between these two cases, and any attempt to restrict it to one of them

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would be purely arbitrary ... The natural meaning of the words leads to the conclusion that these
conditions constitute the exhaustive, enumeration and are not merely stated by way of guidance
or example. The provision would lose its significance and weight if other conditions,
unconnected with those laid down, could be demanded.

Besides, in the Competence of The General Assembly For The Admission of A State to
The United Nations Case (1950) ICJ Rep. 4, the ICJ stated:
The ICJ stated: The Court considers it necessary to say that the first duty of a tribunal which is
called upon to interpret and apply the provisions of a treaty, is to endeavor to give effect to them
in their natural and ordinary meaning in the context in which they occur. If the relevant words in
their natural and ordinary meaning make sense in their context that is an end of the matter ...
When the Court can give effect to a provision of a treaty by giving to the words used in it their
natural and ordinary meaning, it may not interpret the words seeking to give them some other
meanings.
See also: Certain Expenses Of The United Nations Case (1962) ICJ Rep. 151.

TELEOLOGICAL APPROACH
The teleological approach seeks to interpret the treaty in the light of its object and purpose.The
first question under this approach is not about the meaning of the particular clause which is the
subject of interpretation, but a broader inquiry into the objects and purposes of the treaty as a
whole and the individual provisions of the treaty are construed so as to give effect to theseobjects
and purposes.

To a certain extent, this approach is a combination of elements of the first two. In so far as it
relies on the objects and purposes of the treaty as they are expressed in the text, and especially in
the preamble or can be gathered from a reading of the treaty as a whole, the teleological
approach is essentially a variant of the textual approach. In so far as it goes beyond the text and
seeks to ascertain the original aims of the parties in concluding the treaty, by reference to the
entire course of negotiations and the circumstances of its conclusion, it is the subjective approach
in another disguise.

Articles 31 - 33 of the Convention deal with the interpretation of treaties.

Article 31(1) provides the basic rule, which is that a treaty must be interpreted in good faith in

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accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its objects and purposes. One must, therefore, consider each of the three main
elements of treaty interpretation, that is, the text, its context and object and purpose of the treaty.
By "context" is meant material related to the conclusion of the treaty.
Besides, the first principle, namely, interpretation in good faith, flows directly from the
principle of pacta sunt servanda enshrined in Article 26; interpretation is part of the
performance of the treaty and therefore the process of examining the relevant materials and
assessing them must be done in good faith. Further, the determination of the ordinary meaning
cannot be done in the abstract, but only in the context of the treaty and in the light of its object
and purpose.
Paragraph 2 of the Article 31 specifies what comprises the context of the treaty for the
purpose
of interpretation. In addition to the text, the preamble and annexes, the context comprises
a) Any agreement relating to the treaty which was made between all the parties in connection
with the conclusion of the treaty,
b) Any instrument made by one or more parties in connection with the conclusion of the treaty
and accepted by the other parties as an instrument related to the treaty.
Paragraph 3 of Article 31 states that together with the context there shall be taken into account
a) any subsequent agreement between the parties regarding the interpretation of the treaty or the
application of its provisions,
b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation, and
c) any relevant rules of international law applicable in the relations between the parties.

A special meaning must be given to a term if it is established that the parties so intended (para.4).
Notwithstanding the apparent meaning of a term in its context, it is open to a party to invoke any
special meaning, but the burden of proof of the special meaning will rest on that party.
Where the interpretation leaves the meaning ambiguous or obscure, or leads to a result which is
manifestly absurd or unreasonable, Article 32 allows recourse to supplementary means
ofinterpretation, including the travaux preparatoires of the treaty and the circumstances of its
conclusion.
The travaux preparatoires of a treaty is not a primary means of interpretation, but is an

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important supplementary means. International tribunals have for long had recourse to the
travaux for the purpose of confirming the meaning arrived at by the application of the general
rule as set out in Article 31 .
In the case where reliance on the primary means produces an interpretation which leaves the
meaning ambiguous and obscure or leads to a result which is manifestly absurd or unreasonable,
recourse to the same supplementary means of interpretation will be for the purpose of not
confirming, but determining, the meaning.
The International Law Commission did not define what is included in the travaux, but it is
generally understood to include written material such as successive drafts of the
treaty,conference records, explanatory statements by an expert at a codification conference and
uncontested interpretative statements by the chairperson of a drafting committee.
Besides, Article 32 gives only examples of the principal supplementary means of interpretation.
One may therefore look at other treaties on the same subject matter adopted either before or
after the one in question which use the same or similar terms. It is also legitimate to assume that
the parties to a treaty did not intend that the treaty would be incompatible with customary
international law.
Most treaties, bilateral as well as multilateral, are either bilingual or multilingual. Indeed,
multilateral negotiations are usually held in more than one language with the result that the
treaty adopted thereafter will be concluded, similarly, in more than one language.
Treaties which have been so concluded can cause problems of interpretation if there are
material differences between the language texts, unless the treaty provides that in the case of
inconsistency, the text in one language shall prevail.

Under Article 33(1), unless the treaty provides or the parties otherwise agree that in the case of
divergence between the texts a particular text shall prevail, the treaty is equally authoritative in
each language in which it has been authenticated. Sometimes, the parties expressly state in the
treaty if the various language texts are equally authentic.
Under Article 33(2), if a version of a treaty is produced in a language other than those ii which
the treaty has been authenticated, it is not an authentic text, unless the treaty sc provides or the
parties so agree.
If there are two or more authentic texts, the terms of the treaty are presumed to have the same
meaning in each authentic text.
Paragraph 4 lays down the residual rule that, provided there is no provision for a particular text

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to prevail, when a comparison of the authentic texts discloses a difference of meaning, which the
application of Article 31 and 32 does not remove, one must accept the meaning which
bestreconciles the texts.

Article 33 Interpretation of treaties authenticated in two or more languages

1) When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that, in case of
divergence, a particular text shall prevail.
2) A version of the treaty in a language other than one of those in which the text was
authenticated shall be considered an authentic text only if the treaty so provides or the parties
so agree.
3) The terms of the treaty are presumed to have the same meaning in each authentic text.
4) Except where a particular text prevails in accordance with paragraph 1, when a comparison
of the authentic texts discloses a difference of meaning which the application of articles 31
and 32 does not remove, the meaning which best reconciles the texts, having regard to the
object and purpose of the treaty, shall be adopted.

Invalidity of Treaties
Articles 46 - 53 of the Convention deal with the invalidity of treaties. The Convention lays down
five specific grounds which may be invoked as invalidating the consent of a state to be bound by
a treaty. These are:
a) Violation of internal law,
b) Error

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c) Fraud
d) Corruption of State representative, and
e) Coercion.
These grounds must be considered in the light of Article 42(1) of the Convention which
provides that the validity of a treaty or of the consent of a state to be bound by a treaty may be
impeached only through the application of the Convention, a provision that is meant toprevent
a State party to a treaty from attempting to evade an inconvenient treaty obligation by alleging
spurious grounds of invalidity.

(a) Violation of Internal Law

As already noted, under the provisions of Articles 46 and 47, a State may not invoke a violation
of its internal law or a specific restriction on its representative's authority to express its consent
to be bound, as a ground for invalidating a treaty. The two Article: are expressed in negative
form ("may not invoke ... unless") to emphasize the exceptional character of the cases in which
these grounds may be invoked. There are a number of procedures in treaty-making, such as
ratification, which have been specifically designed to enable a State to reflect fully before
deciding whether or not to become a party, and to comply with any constitutional requirements.
States are entitled to regard other States as having acted in good faith when their representatives
express their consent to be bound. Besides, these provisions are limited to those cases where the
treaty is not subject to ratification or similar process, since in that case the State would have an
opportunity to repudiate any unauthorized act of its representative.

b)Error
In customary international law, errors of substance have not been invoked as a ground for
vitiating the consent of State to be bound by a treaty. Neither have they been successfully
invoked even judicially
See The Temple of Preah Vihear (Cambodia vs Thailand) Case (1962) ICJ Rep. 6
Where the Court held that it is an established rule of law that the plea of error cannot be allowed
as an element vitiating consent if the party advancing it contributed by its own conduct to the

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error or could have avoided it, if the circumstances were such as to put that party on notice of a
possible error). This is because modern treaty-making process is such that the risk of material
error is reduced to the minimum, and in practice most alleged errors concern geographical errors,
mostly errors on maps.
This rule is declared by Article 48 of the Convention. Error may be invoked as a ground for
invalidating consent only if:
a) the error relates to a fact or situation which was assumed by State invoking the error to exist at
the time when the treaty was concluded, and
b) that fact or situation formed an essential basis of its consent to be bound by a treaty.
Further, error may not be invoked by a State if it contributed by its own conduct to the error or
if the circumstances were such as to put the State on notice of a possible error.Thus, only if the
error is essential or fundamental to the obligations that a State believes it had
undertaken will it be a reason for invalidating the treaty.
c) Fraud
Fraud exercised by a negotiating State to induce the conclusion of a treaty with another may
entitle the latter to claim that its consent to the treaty has been vitiated. In State practice,
however, examples of fraud as a ground for vitiating consent to be bound are non-existent.
Notwithstanding, Article 49 provides that a State induced to conclude a Treaty by the fraudulent
conduct of another negotiating State may invoke the fraud as invalidating its consent to be
bound by the treaty. The expression "fraudulent conduct" includes any deliberately false
statements, misrepresentations or other deceitful proceedings by which a State is induced to give
consent which it would otherwise give. Fraud may be invoked with respect to particular clauses
only, provided they are separable, are not essential to the treaty, and it would not be unjust to
continue performance of the rest of the treaty.

d) Corruption of a State Representative

Under Article 50, a State may invoke the corruption of its representative by another negotiating
State as invalidating its consent to be bound by a treaty. In its commentary, the ILC limited the
scope of the provision by stating that corruption was used "expressly in order to indicate that
only acts calculated to exercise a substantial influence on the disposition of the representative to
conclude the treaty" may be invoked and that a small courtesy or favour shown to a
representative will not be sufficient. It is, however, unlikely that this provision could be invoked

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if the treaty is subject to ratification. As with fraud, corruption may be invoked either with
respect to the whole treaty or, subject to conditions, to particular clauses (Article 44 (4)).
e) Coercion of Representative/State
The cardinal rule of international law and the cornerstone of peaceful relations among States is
stated in Article 2(4) of the UN Charter which prohibits States from the threat or use of force in
international relations. Article 2 UN CHARTER The Organization and its Members, in pursuit
of the Purposes stated in Article 1, shall act in accordance with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfill in good faith the obligations assumed by them in accordance with the
present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
4. 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.
5. All Members shall give the United Nations every assistance in any action it takes in
accordance with the present Charter, and shall refrain from giving assistance to any state against
which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance of international
peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require
theMembers to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter VII.
Accordingly, under Article 51 of the Convention, the expression of a State's consent to be
bound by a treaty which has been procured by the coercion of its representative through acts of
threats directed against him shall be without any legal effect. Even if it were possible to separate
out provisions of the treaty to which the State would have no objection, this is not permitted: the
whole treaty will be void (Article 44(5). Such coercion may include, for instance, acts or threats
of physical harm or blackmail and must be directed against the representative as an individual or
his family, and not in his representative capacity.

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Besides, under Article 52, a treaty whose conclusion has been procured by the threat or use of
force in violation o the principles of international law embodied in the UN Charter, shall be void.
Article 52 states that a treaty is void if its conclusion has been procured by the threat or use of
force in violation of the principles of international law embodied in the Charter of the United
Nations. No separation of the provisions of the treaty is permitted (Article 44(5). It should be
noted, however, that if the treaty is multilateral, the participation of the coerced State will be
void, but not the treaty itself, the provisions of Article 44(5) being applicable to the provisions of
the treaty, not to its parties.
Further, Article 52 does not apply to economic or political pressure or to the threat or use of
lawful force so that, for instance, when the treaty is entered into pursuant to a decision of the
UN Security Council, it will not be void.
Indeed, Article 75 of the Convention provides expressly that its provisions are without prejudice
to any obligations in relation to a treaty which may arise for an aggressor State in consequence
of measures taken in conformity with the UN Charter with reference to that State's aggression.
Article 75 : Case of an aggressor State; The provisions of the present Convention are without
prejudice to any obligation in relation to a treaty which may arise for an aggressor State in
consequence of measures taken in conformity with the Charter of the United Nations with
reference to that State’s aggression.
Article 69 provides for the consequences of the invalidity of a treaty. The invalidity of a treaty is
rooted in the invalidity of the consent of a party to be bound. If it is a bilateral treaty, it will be
void ab initio and its provisions will have no legal force (Article 69(1)).
If acts have been performed in good faith under an invalid treaty, each party may require the
other to establish, as far as possible in their mutual relations, the position that would have existed
if the acts had not been performed, and if acts performed in good faith under an invalid
treaty are not otherwise unlawful, they will not be rendered unlawful by the invalidity of the
treaty (Article 69(2)). But a party whose fraud, corruption or coercion was the cause of the
invalidity cannot benefit from these provisions (Article 69(3)).
In the case of a multilateral treaty, an invalid consent will normally mean that the treaty will
nevertheless remain valid for the other parties (Article 69(4)).

Depositary, Registration and Publication

The negotiating parties to a multilateral treaty may designate the depositary for that treaty

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either in the treaty itself or in some other manner as may be adopted by them. When a treaty is
adopted within the framework of the UN or at a conference convened by the UN, the treaty
normally includes a provision designating the Secretary General as the depositary. If a
multilateral treaty has not been adopted within the framework of an international organization or
at a conference convened by such an organization, it is customary for the treaty to be deposited
with the State that hosted the negotiating conference.
When a treaty is not adopted within the framework of the UN or at a conference convened by
the UN, it is necessary for parties to seek the concurrence of the Secretary General to be the
depositary for the treaty before designating the Secretary General as such.
In general, the Secretary General's policy is to assume depositary functions only for:
i. Multilateral treaties of worldwide interest adopted by the General Assembly or
concluded by plenipotentiary conferences convened by the appropriate organs of the
UN that are open to wide participation, and
ii. Regional treaties adopted within the framework of the regional commissions of the UN
that are open to participation by the entire membership of the relevant commissions.
The Secretary General derives authority to act as depositary from
i. Article 98 of the UN Charter,
ii. Provisions of the treaties themselves,
iii. United Nations General Assembly Resolution 24(1) of February 12, 1946, and
iv. League of Nations Resolution of April 18, 1946.
Article 98 OF UN CHARTER:The Secretary-General shall act in that capacity in all meetings
of the General Assembly, of the Security Council, of the Economic and Social Council, and of
the Trusteeship Council, and shall perform such other functions as are entrusted to him by these
organs. The Secretary-General shall make an annual report to the General Assembly on the
work of the Organization.
The depositary of a treaty is responsible for ensuring the proper execution of all actions relating
to the treaty. The depositary's duties are international in character, and the depositary is under an
obligation to act impartially in the performance of those duties.
The Secretary General is guided in the performance of depositary functions by
i. The provisions of the relevant treaty,
ii. Resolutions of the United Nations General Assembly and other organs of the UN,
iii. Customary international law, and
iv. Article 77 of the Vienna Convention on the Law of Treaties.

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Under Article 102 of the UN Charter, and Article 80 VCLT, every treaty and every
international agreement entered into by any member of the UN must be registered with the UN
Secretariat and published by it.
Article 102 OF UN CHARTER
1. Every treaty and every international agreement entered into by any Member of the United
Nations after the present Charter comes into force shall as soon as possible be registered with
the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph 1 of this Article may invoke that treaty or
agreement before any organ of the United Nations.
Article 80 Registration and publication of treaties
1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United
Nations for registration or filing and recording, as the case may be, and for publication.
2. The designation of a depositary shall constitute authorization for it to perform the acts
specified in the preceding paragraph.
No party to any such treaty or international agreement which has not been so registered may
invoke that treaty or agreement before any organ of the UN. Thus, member states of the UN have
a legal obligation to register treaties and international agreements with the Secretariat, and the
Secretariat is mandated to publish registered treaties and international agreements.

The objective of Article 102 is to ensure that all treaties and international agreements remain in
the public domain and thus assist in eliminating secret diplomacy.
Every treaty or international agreement that is registered or filed and recorded must be
published as soon as possible, in a single series. Treaties are published in the UN Treaty Series
in their authentic languages, followed by translations in English and French, as required.

Enforcement & Performance of Treaties/Treaties & Domestic Law

As already pointed out, the principle of pacta sunt servanda underwrites the integrity of treaties
as a whole. A State cannot enter into an international agreement with other States if it is not
ready and willing to perform its obligations there under in good faith. Neither can it rely on its
domestic law to justify the non-performance of its obligations under the treaty, because
international law imposes upon the State the obligation to ensure that its domestic law is in

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harmony with its international engagements. Besides, a State cannot plead a change in
government as an excuse for failure to perform its treaty obligations.
Since the treaty is entered into on behalf of and binds the State, even the new government must
ensure the treaty obligations are carried out.
The entry into force of a treaty does not mean it is in force in the ratifying or acceding State, that
is, that it has become part of the Law of that State. For it to have effect in the domestic law of the
State, it must be given such effect in accordance with the constitutional procedure on how
treaties are dealt with.
Although no two constitutions are identical, there are two approaches to how they deal with
treaties, that is, dualism and monism.
1. Discussion of Kenya's Treaty Practice under the old Constitutional Regime.
2. Formation of Task Force to Prepare a Position Paper on Treaty Practice under the New
Constitutional Regime in the light of Article 2 (6) thereof.

Termination of Treaties
As already noted, the rule pacta sunt servanda is the fundamental principle of the law of
treaties. A State cannot release itself from its treaty obligations whenever it feels like it, because
this would seriously erode the sanctity of treaties. However, few treaties last forever, and in
order to prevent the law from being too rigid, some provision is made for the termination of
treaties.
Article 42(2) of the Vienna Convention, seeking to protect the security of legal relations,
provides that the termination of a treaty, its denunciation or the withdrawal of a party, may
take place only as a result of the application of the provisions of the treaty or of the
Convention.The same rule applies to suspension of the operation of a treaty. Termination of a
treaty occurs when the parties thereto are discharged from further obligations thereunder.

Denunciation denotes a unilateral act by which a party seeks to terminate its participation in a

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treaty. Lawful denunciation of a bilateral treaty terminates the treaty. Although denunciation is
also used in relation to a multilateral treaty, the better term is withdrawal.
Withdrawal of a party from a multilateral treaty will not normally result in its termination
because, though the withdrawing parties may be discharged from their obligations, the treaty
will continue in full force and operation between the remaining parties.
Termination may occur in one of three ways, namely
i. pursuant to the provisions of the treaty itself,
ii. pursuant to the conclusion of a fresh agreement of the parties, and
iii. by operation of the law.
The first two ways of termination are provided for in Article 54 of the Vienna Convention which
states that the termination of a treaty or the withdrawal of a party may take place
a) In conformity with the provisions of the treaty; or
b) At any time by consent of all the parties after consultation with the other contracting
States. If the treaty creates rights for a third State in accordance with Article 36 or a obligation
has arisen for a third State from the treaty in accordance with Article 37, the consent of the third
State may also be needed.

Article 36 Treaties providing for rights for third States

1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend
the provision to accord that right either to the third State, or to a group of States to which it
belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long
as the contrary is not indicated, unless the treaty otherwise provides.
2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions
for its exercise provided for in the treaty or established in conformity with the treaty.
Article 37 Revocation or modification of obligations or rights of third States
1. When an obligation has arisen for a third State in conformity with article 35, the obligation
may be revoked or modified only with the consent of the parties to the treaty and of the third
State, unless it is established that they had otherwise agreed.
2. When a right has arisen for a third State in conformity with article 36, the right may not be
revoked or modified by the parties if it is established that the right was intended not to be
revocable or subject to modification without the consent of the third State.

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Under Article 55, unless the treaty otherwise provides, a multilateral treaty does not terminate
by reason only of the fact that the number of the parties falls below the number necessary for
its entry into force. Further, a treaty which contains no provision for denunciation or
withdrawal is not subject to denunciation or withdrawal unless:
i. it is established that the parties intended to admit the possibility of denunciation or withdrawal;
ii. a right of denunciation or withdrawal may be implied by the nature of the treaty (Article 56).
Article 55 Reduction of the parties to a multilateral treaty below the number necessary for its
entry into force
Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of
the fact that the number of the parties falls below the number necessary for its entry into force.
Article 56 Denunciation of or withdrawal from a treaty containing no provision regarding
termination, denunciation or withdrawal
1. A treaty which contains no provision regarding its termination and which does not provide for
denunciation or withdrawal is not subject to denunciation or withdrawal unless: a) It is
established that the parties intended to admit the possibility of denunciation or withdrawal; or
b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
2. A party shall give not less than twelve months’ notice of its intention to denounce or withdraw
from a treaty under paragraph 1.
A party intending to denounce or withdraw from such a treaty must give not less than twelve
months' notice of its intention. However, under this Article a right to denunciation or withdrawal
can never be implied if the treaty contains an express provision regardingdenunciation,
withdrawal or termination .Since it is now common to include provisions on withdrawal, when a
treaty makes no provision for termination or withdrawal it may be much more difficult for a
party wishing to invoke denunciation or withdrawal.A party will not be able to withdraw from a
treaty transferring territory or establishing a boundary. The same may apply in the case of
codification treaties which, in many cases, reflect rules of customary law and so withdrawal
might make little or no legal difference.
Other treaties which are unlikely to be capable of withdrawal are treaties of peace and
disarmament, and those establishing permanent regimes (e.g., the Suez Canal). Besides, most
universal human rights treaties do not provide for withdrawal.
Article 59 of the Convention provides for implied termination where parties conclude a similar
treaty on the same subject matter.

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Article 59 Termination or suspension of the operation of a treaty implied by conclusion of a
later treaty
1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty
relating to the same subject matter and: a) it appears from the later treaty or is otherwise
established that the parties intended that the matter should be governed by that treaty; or b) the
provisions of the later treaty are so far incompatible with those of the earlier one that the two
treaties are not capable of being applied at the same time.
2. The earlier treaty shall be considered as only suspended in operation if it appears from the
later treaty or is otherwise established that such was the intention of the parties.
If the parties to both the earlier and later treaties are identical, they are competent to abrogate
the earlier one, and may include an express provision to this effect in the later treaty. The same
would apply even if the parties to the later treaty are not the same as for the earlier one, provided
they include all the parties to the earlier one.
Article 59(1) provides that if all the parties to the earlier treaty are also parties to the later one,
and the two treaties relate to the same subject matter, the earlier treaty will be terminated if
a) it appears from the later treaty or is otherwise established that the parties intended
that the matter should be governed by that treaty, or

b) the provisions of the later treaty are so incompatible with those of the earlier one that
the two treaties are not capable of being applied at the same time.
Article 59 (2) provides that the earlier treaty will be considered as only suspended in operation
if it appears from the later treaty, or it is otherwise established that such was the intention of
the parties. The question is therefore one of interpretation of the two treaties to determine what
the parties intended.
Grounds for Termination
Like the violation of any other international obligation, breach of a treaty obligation may entitle
another party to terminate or withdraw from the treaty or suspend its operation. Article 60 of the
Convention lays down rules on breach of treaties and these may be summarized as follows:-A
material breach of a bilateral treaty by one of the parties entitles the other to invoke the breach as
a ground for the termination or suspension of the treaty in whole or in part.
Article 60 Termination or suspension of the operation of a treaty as a consequence of its
breach

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1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
a) the other parties by unanimous agreement to suspend the operation of the treaty in whole or
in part or to terminate it either: i. in the relations between themselves and the defaulting State;
or ii. as between all the parties;
b) a party specially affected by the breach to invoke it as a ground for suspending the operation
of the treaty in whole or in part in the relations between itself and the defaulting State;
c) any party other than the d efaulting State to invoke the breach as a ground for suspending the
operation of the treaty in whole or in part with respect to itself if the treaty is of such a character
that a material breach of its provisions by one party radically changes the position of every
party with respect to the further performance of its obligations under the treaty.
3. A material breach of a treaty, for the purposes of this article, consists in: a) A repudiation of
the treaty not sanctioned by the present Convention; or b) The violation of a provision essential
to the accomplishment of the object or purpose of the treaty.
4. The foregoing paragraphs are without prejudice to any provision in the treaty applicable in
the event of a breach.

5. Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person
contained in treaties of a humanitarian character, in particular to provisions prohibiting any
form of reprisals against persons protected by such treaties.
a) A material breach ofa bilateral treaty by one of the parties entitles the other to invoke
the breach as ground for the termination or suspension of the treaty in whole or in part.
The use of ''invoke" means that a party may not simply declare a treaty at an end because
of the perceived breach. Subject to such right as it may have to take counter measures, it
must seek a peaceful settlement of the dispute as required by Article 33 of the UN
Charter as well as Articles 65 - 68 of the Convention. To entitle a party to invoke
material breach, the breach must be of the treaty itself and not of another treaty or of rules
of general international law. Nor can a party which is in itself already in breach, and
which has prevented the other party from complying with the treaty, invoke a breach of
that other party.

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 b) A material breach of a multilateral treaty by one of the parties entitles the other parties
by unanimous agreement to suspend the operation of the treaty in whole or in part or to
terminate it either in relations between themselves and the defaulting State or generally.
c) A material breach of a multilateral treaty by one of the parties entitles a party specially
affected by the breach to invoke it as a ground for suspending the operation of the treaty
as a whole or in part in relation between itself and the defaulting State.
d) A material breach of a multilateral treaty by one of the parties entitles any party other
than the defaulting State to invoke the breach as a ground for suspending the operation
of the treaty in whole or in part with respect to itself if the treaty is of such a character
that a material breach of its provisions radically changes the position of every party with
respect to the performance of its obligations under the treaty. This provision is designed
to deal with certain special types of treaty, such as disarmament treaties, where breach by
one party could well undermine the whole treaty regime. In such a case, the provision of
paras. (1) and (2) may not adequately protect the interests of an individual party, which
could not suspend the performance of its own obligations in relation to the defaulting
party without at the same time breaching its obligations to the other parties, yet if it does
not do so, it may be unable to protect itself against the threat resulting, for instance, from
rearming by the defaulting State.

e) A "material breach" for purposes of the Article consists in a repudiation of the treaty not
sanctioned by the Convention or the violation of a provision essential to the
accomplishment of the object or purpose of the treaty. An example would be the refusal
by a party to the Nuclear Non-Proliferation Treaty 1968/Comprehensive Nuclear Test
Ban Treaty 1996 or the Chemical Weapons Convention 1993 to have conduct on its
territory of international inspections to verify its compliance with treaty provisions, the
inspection regime being a key means of monitoring the effectiveness of the treaties.
Article 60(5) makes it clear that paras. (1) to (3) do not apply to breach of provisions in
treaties relating to the protection of the human person and, in particular, provisions
prohibiting any form of reprisals against persons protected by such treaties.

Supervening impossibility of performance may be invoked by a party as a ground for

terminating or withdrawing from a treaty. If an object which is indispensable for the execution
of a treaty disappears permanently or is destroyed, thereby making the performance of the treaty

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impossible, a party can invoke this as a ground for terminating or withdrawing from the treaty,
and Article 61 so provides.
Article 61 Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results from the permanent disappearance or destruction
of an object indispensable for the execution of the treaty. If the impossibility is temporary, it may
be invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating,
withdrawing from or suspending the operation of a treaty if the impossibility is the result of a
breach by that party either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
The ILC gave as possible examples of impossibility of performance, the submergence of an
island, the permanent drying up of a river or the destruction of a dam. If the impossibility is
temporary, it is only a ground for the suspension of the operation of the treaty. Impossibility of
performance may not be invoked by a party if it is the result of a breach by it either of an
obligation under the treaty or of any other international obligation owed to any other party to the
treaty.

Fundamental change of circumstances may justify a party in demanding to be released from

the obligations of a treaty which cannot be abrogated by unilateral notice. Indeed, a party is not
bound to perform a treaty if there has been a fundamental change of circumstances since the
treaty was concluded. Many writers defend the principle clausala rebus sic stantibus and
assert that all treaties are concluded under the condition of rebus sic stantibus. The doctrine, in its
proper limits, embodies a general principle of law as expressed by the municipal law doctrine of
frustration. It is in this sense that every treaty implies a condition that if, by an unforeseen
change of circumstances, a treaty obligation should imperil the existence or vital development of
one of the parties, it should have a right to demand to be released from the obligation concerned.
However, the operation of the doctrine is limited because it is the function of the law to
enforce contracts or treaties even if they become burdensome for the party bound by them.
This explains why the doctrine has not been invoked with success even before international
tribunals.
For instance, in the:
Fisheries Jurisdiction Case (U.K. vs. Iceland) (Jurisdiction) (1974) 1CJ Rep. 3,

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The ICJ said that Article 62 may in many respects be considered as a codification of existing
customary law on the subject, but held that the dangers to Icelandic interests resulting from new
fishing techniques that would facilitate the increased exploitation of the fishery resources in the
seas surrounding Iceland could not constitute a fundamental change with respect to the lapse or
subsistence of the jurisdictional clause in the bilateral agreement between UK and Iceland. The
agreement which Iceland sought to have terminated on the basis of rebus sic stantibus was the
1961 Exchange of Notes with the UK by which either party could refer a dispute concerning
Iceland's extension of its fishing zone to the ICJ. The Court stated that the alleged changes in
fishing techniques could not affect the obligation to submit to the Court's jurisdiction as per the
agreement.

For a party to rely on rebus sic stantibus, it must show that the change of circumstances has
resulted in a radical transformation of the extent of the obligations still to be performed. The
change must have increased the burden of obligations to be executed to the extent of rendering
the performance something essentially different from that originally undertaken.
See (Gabcikovo-Nagymaros Case) (1997) ICJ Rep. 7,

(Gabcikovo -Nagymaros Case) (1997) ICJ Rep. 7,

The Court rejected Hungary's argument that profound political changes, diminishing economic
viability of a project, progress in environmental knowledge and the development of new norms
of international environmental law constituted a fundamental change of circumstances. It
emphasized that the stability of treaty relations requires that Article 62 be applied only in
exceptional cases (para. 104).
Article 62 Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at
the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless: a) the existence of
those circumstances constituted an essential basis of the consent of the parties to be bound by
the treaty; and b) the effect of the change is radically to transform the extent of obligations still
to be performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty: a) if the treaty establishes a boundary; or b) if the fundamental

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change is the result of a breach by the party invoking it either of an obligation under the treaty
or of any other international obligation owed to any other party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of
circumstances as a ground for terminating or withdrawing from a treaty it may also invoke the
change as a ground for suspending the operation of the treaty.
Like impossibility of performance, rebus sic stantibus does not give a State party the right,
immediately upon the occurrence of a vital change of circumstances, to declare itself free
fromthe obligations of the treaty; it only entitles it to claim to be released from them by the other
party or parties to the treaty. So when a State is of the view that the obligations of a treaty have,
through a change of circumstances, become unbearable, the proper course for it is first to
approach the other party or parties and request for the abrogation of the treaty.
If the parties thus approached refuse to accede to the request - which ought to be coupled with an
offer to submit any disputed issue to judicial determination - then this requesting State may be
justified in declaring that it can no longer consider itself bound by the treaty.

Under Article 62(1) rebus sic stantibus may not be invoked as a ground for terminating or
withdrawing from a treaty unless
a) The existence of those circumstances constituted an essential basis of the consent of
the parties to be bound by the treaty, and
b) The effect of the change is radically to transform the extent of the obligations still to be
performed under the treaty.

Article 62(2) provides for two circumstances in which rebus sic stantibus cannot be invoked as
a ground for terminating or withdrawing from a treaty.
1. The first is where the treaty establishes a boundary. Treaties defining boundaries have a
special status in international law. Boundaries that are established by such agreements have a
permanence that exists independently of the fate of the agreements that set them out. This
principle was affirmed by the ICJ in the Case Concerning Territorial Dispute:
Libyan Arab Janahiriya v. Chad (1994) ICJ Rep. 6.
After an armed conflict, Libya and Chad agreed to refer a territorial dispute regarding the
location of their mutual border to the ICJ for resolution. A 1955 Treaty of Friendship and Good

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Neighborliness had been negotiated between the then newly independent State of Libya and
France, as the colonial administrator of Chad at that time. In the treaty, a border had been set
down between the two countries, but the treaty itself was expressed to be for a period of twenty
years. In addition, there was complete disagreement between the parties as to the principles of
international law to be applied to the facts and circumstances of the case to establish the border.
The Court held that the border was definitively agreed in the 1955 Treaty to which Chad was a
party as a successor State to the French administered territory. The fact that the treaty was
concluded for a limited period was irrelevant because treaties setting down borders create
demarcations which endure independently of the agreement establishing them.
The Court said: There is nothing in the 1955 Treaty to indicate that the boundary agreed was to
be provisional or temporary; on the contrary it bears all the hallmarks of finality. The
establishment of this boundary is a fact which from the outset has had a legal life of its own,
independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other
approach would vitiate the fundamental principle of the stability of boundaries, the importance of
which has been repeatedly emphasized by the Court ... A boundary established by treaty thus
achieves a permanence which the treaty itself does not necessarily enjoy.
The treaty can cease to be in force without in any way affecting the continuance of the
boundary. In this instance, the parties have not exercised their option to terminate the Treaty, but
whether or not the option is exercised, the boundary remains.
2. The second circumstance is where the fundamental change is the result of a breach by the
party invoking it either of an obligation under the treaty or of any other international
obligations owed to any other party to the treaty. Where a party may successfully invoke the
doctrine of rebus sic stantibus as a ground for termination or withdrawing from a treaty, it may
also invoke it as a ground for suspending the operation of the treaty.
The severance of diplomatic or consular relations between parties to a treaty does not affect
the legal relations established between them by treaty, except in so far as the existence of
diplomatic or consular relations is indispensable for the application of the treaty (Art. 63).
Article 63 Severance of diplomatic or consular relations.
The severance of diplomatic or consular relations between parties to a treaty does not affect the
legal relations established between them by the treaty except insofar as the existence of
diplomatic or consular relations are indispensable for the application of the treaty.
The rule applies to both bilateral and multilateral treaties. In fact, the severance of diplomatic
relations may not make a substantial difference since Article 74 provides that the severance or

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absence of diplomatic or consular relations between two or more States does not prevent the
conclusion of treaties between those States.
Article 74 Diplomatic and consular relations and the conclusion of treaties
The severance or absence of diplomatic or consular relations between two or more States does
not prevent the conclusion of treaties between those States. The conclusion of a treaty does not
in itself affect the situation in regard to diplomatic or consular relations.
The conclusion of a treaty does not, in itself, affect the situation in regard to diplomatic
orconsular relations.
Amendment
Amendment of treaties is a subject of great practical importance, especially with respect to
multilateral treaties, and always need to be addressed at the time of drafting the treaty. Amending
a bilateral treaty is not technically difficult; amending a multilateral treaty can raise complex
technical and political problems, especially if the treaty is of worldwide interest and of unlimited
duration.
This gives rise to three basic problems.
i. First, the process of agreeing on amendments and then bringing them into force can be
as difficult as negotiating and bringing into force the original treaty, and sometimes even more
troublesome.
ii. Secondly, because of their long life, multilateral treaties are more likely to need
amendment.
iii. Thirdly, because of an inadequate amendment provision, or lack thereof, in the original
treaty, most amendments do not bind all the parties.

Article 39 of the VCLT states the general rule regarding the amendment of treaties, whether
bilateral or multilateral: a treaty may be amended by "agreement" between the parties.
PART IV. AMENDMENT AND MODIFICATION OF TREATIES
Article 39 General rule regarding the amendment of treaties: A treaty may be amended by
agreement between the parties. The rules laid down in Part II apply to such an agreement except
insofar as the treaty may otherwise provide.
The use of this word recognizes that it is perfectly possible to amend a treaty by an agreement
which does not itself constitute a treaty, or, possibly, by an oral agreement whose legal force is

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preserved by Article 3. Similarly, a treaty can also be effectively amended by a subsequent
agreement between the parties regarding the interpretation or application of the treaty
(Article31(3)(a)).
SECTION 3. INTERPRETATION OF TREATIES
Article 31 General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes: a) any agreement relating to the treaty which was
made between all the parties in connection with the conclusion of the treaty; b) any instrument
which was made by one or more parties in connection with the conclusion of the treaty and
accepted by the other parties as an instrument related to the treaty.
3. There shall be taken into account, together with the context: a) any subsequent agreement
between the parties regarding the interpretation of the treaty or the application of its provisions;
b) any subsequent practice in the application of the treaty which establishes the agreement of the
parties regarding its interpretation; c) any relevant rules of international law applicable in the
relations between the parties.
4. A special meaning shall be given to a term if it is established that the parties so intended.

Article 39 provides that the rules laid down in Part II of the Convention apply to an agreement
to amend a treaty "except in so far as the treaty may otherwise provide." This is recognition of
the fact that many multilateral treaties now have built-in amendment mechanisms.
Bilateral treaties can be amended more easily than multilateral. The parties can always agree to
an amendment, the only question being the form in which it is to be expressed. This could, for
instance, be by exchange of notes confirming the amendment.
With respect to multilateral treaties, States have devised methods of amendment which avoid
amendment by means of another treaty. Most multilateral treaties now have an effective and
comprehensive mechanism for their amendment. Cf. Article 108 of the UN Charter.
CHAPTER XVIII
AMENDMENTS
Article 108 Amendments to the present Charter shall come into force for all Members of the
United Nations when they have been adopted by a vote of two thirds of the members of the

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General Assembly and ratified in accordance with their respective constitutional processes by
two thirds of the Members of the United Nations, including all the permanent members of the
Security Council.
Where there is no built-in amendment procedure or where the procedure is either not
comprehensive or does not cover all eventualities, Articles 40 and 41 of the VCLT provide the
fall-back rules.

Article 40 Amendment of multilateral treaties

1. Unless the treaty otherwise provides, the amendment of multilateral treaties shall be governed
by the following paragraphs.
2. Any proposal to amend a multilateral treaty as between all the parties must be notified to all
the contracting States, each one of which shall have the right to take part in: a) the decision as
to the action to be taken in regard to such proposal; b) the negotiation and conclusion of any
agreement for the amendment of the treaty.
3. Every State entitled to become a party to the treaty shall also be entitled to become a party to
the treaty as amended.
4. The amending agreement does not bind any State already a party to the treaty which does not
become a party to the amending agreement; article 30, paragraph 4 (b), applies in relation to
such State.
5. Any State which becomes a party to the treaty after the entry into force of the amending
agreement shall, failing an expression of a different intention by that State: a) be considered as
a party to the treaty as amended; and b) be considered as a party to the un amended treaty in
relation to any party to the treaty not bound by the amending agreement.
Article 41 Agreements to modify multilateral treaties between certain of the parties only
1. Two or more of the parties to a multilateral treaty may conclude an agreement to modify the
treaty as between themselves alone if: a) the possibility of such a modification is provided for by
the treaty; or b) the modification in question is not prohibited by the treaty and: i. does not
affect the enjoyment by the other parties of their rights under the treaty or the performance of
their obligations; ii. does not relate to a provision, derogation from which is incompatible with
the effective execution of the object and purpose of the treaty as a whole.
2. Unless in a case falling under paragraph 1 ( a) the treaty otherwise provides, the parties in
question shall notify the other parties of their intention to conclude the agreement and of the
modification to the treaty for which it provides.

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Any proposal to amend the treaty as between the parties must be notified to all the contracting
States. Each of them has the right to participate in the decision on the action that should be taken
and in the negotiation and conclusion of any amendment treaty. Every State entitled to become a
party to the treaty-is also entitled to become a party to the treaty as amended.

This would apply to a State which had taken part in the conclusion of the treaty, but had not yet
expressed its consent to be bound.An amending agreement does not bind a party to a treaty
which does not become a party to the amending agreement. As between such a party and a party
to the amending agreement, only the un amended treaty applies.
Unless a State expresses a different intention, it is considered to be a party to the treaty as
amended, and in relation to any party to the treaty which is not bound by the amending
agreement, it is regarded as a party to the un-amended treaty.
Article 41 deals with instances where some of the parties to a treaty make an agreement for the
purpose of modifying the treaty only as between themselves. Such an inter se agreement is
permissible if the possibility of such a modification is provided in the treaty.
If the modification is not prohibited by the treaty, an inter se agreement will be permissible if
i.) it does not prejudice the rights or add to the burdens of the other parties, and
ii.) it does not relate to a provision derogation from which would be incompatible with the
effective execution of the object and purpose of the treaty as a whole.
Unless the possibility of an inter se agreement is provided for in the treaty, the prospective
patties thereto must notify the other parties of their intention and of the modification.Sometimes,
it may be necessary to adopt amendments to a multilateral treaty before it has entered into force.
The classic example is the 1994 Agreement Relating to the Implementation of Part XI of the
1982 UN Convention on the Law of the Sea. Industrialized States would not adhere to the
Convention because the provisions in Part XI on mining of the deep seabed had become
unacceptable to them. The Convention could therefore have entered into force with the majority
of the parties being developing States, a situation that would have meant their having to pay the
costs of the
Convention's elaborate institutional framework, and denied the Convention its universal
character.
NB. Distinction between treaties which amend and treaties which supplement. The right to
become a party to a supplementary treaty is not necessarily limited to parties to the earlier

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treaty. The supplementary treaty, although linked to the earlier treaty, may well stand alone and
does not need the parties to it to be parties to the earlier treaty in order to be effective. For
instance, the 1967 Protocol relating to the Status of Refugees does not amend the 1951 UN
Convention on Refugees, but requires the parties to apply the substantive provisions of the
Convention as broadened by the Protocol, thereby opening the Protocol to all States.
Duration
The duration of a treaty depends partly on its object and purpose and partly on express
intention of the parties. Many bilateral treaties make no provision for duration and their subject
matter is such that they could remain in force indefinitely. However, since it is possible that one
of the parties may want to terminate it some time, it is usual for them to include a termination
clause. Most multilateral treaties of unlimited duration will allow a party an unconditional right
to withdraw, whereas others may place certain limitations on when a party may withdraw, yet
others provide for duration for a fixed period with the possibility of extension by agreement.
Multilateral treaties that are constituent instruments of international organizations will normally
be for an indefinite period.

PRACTICE QUESTION
Flecha and Tuphs are two sovereign independent states which in 2995 concluded a treaty to
facilitate the joint construction of hydro-electric dams on the Lauterpacht River, which marks the
common boundary between the two states, in order to meet the present and future energy
requirements to facilitate the rapid industrialization for the mutual socio-economic benefit of the
two states. The treaty did not contain any provision regarding termination. The construction
works commenced in January 1996 and were estimated to last for the next five years .In January
1997 Flecha faced with lots of opposition from local and international non -
governmentalorganizations concerned about the environmental impacts of the project suspended
the works.Flecha also argued that the suspension of the works was a matter of necessity for the
State.
However Tuphs rejected Flecha’s grounds for suspension of the works and unilaterally
proceeded with the execution of the works and ended up diverting the waters of the Lauterpacht
River into a by-pass canal in its own territory. Flecha then claimed the right to terminate the
Treaty arguing that Tuphs had violated the treaty by undertaking unilateral works, culminating in
the diversion of the Lauterpacht River.Flecha argued further that the subsequent progress in the
knowledge and awareness of the environmental consequences of the project, its reduced

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economic viability, coupled with the new government policy of self reliance, cumulatively
constituted such a fundamental change of circumstances as to radically transform the nature and
extent of the obligation still to be performed to accomplish the project.

On learning that the Republic of Flecha’s declaration ,filed under the Statute of the ICJ accepting
the court's jurisdiction has not been withdrawn,the Republic of Tuphs did in January 2000 filed
suit in the ICJ at the Hague seeking inter alia
a) A declaration that the Republic of Flecha’s actions aforesaid violate international law and
b) A determination that the Republic of Flecha is liable for the losses incurred by the Republic of
Tuphs and order payment of reparation
The Republic of Flecha contests the claim on the grounds that its actions did not invoke its
international responsibility as alleged or at all as they were legitimate and justified under
international law. Both Flecha and Tuphs are parties to the 1969 Vienna Convention on the Law
of Treaties and apart from the above referred to treaty neither country is a party or signatory to
any either treaty relevant to this case. Being a junior member of the ICJ Bench your opinion is
heard first. Prepare an articulate opinion with the support of relevant authorities, analyzing the
legal issues involved and indicating how the Court should decide the Case.

ENDZ "#@@

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TERRITORY AND TERRITORIAL JURISDICTION .
Introduction
Concept of territory
International law is based on the concept of the state. The state in turn lies upon the
foundation of sovereignty which expresses domestically the supremacy of the
governmental institutions and externally the supremacy of a state as a legal person.
(Remember Peace of Westphalia)
Sovereignty is founded upon the fact of territory. Without territory a legal person
cannot be a state. Territory is the basic characteristic of a state and the one most
accepted and understood.Territory is the foundation of a state factual existence and the
basis for the exercise of its powers. Indeed the importance of territory to related
concepts such as sovereignty, integrity and jurisdiction is fundamental. For instance , a
change in ownership of a particular territory also involves a change in sovereignty,
legal authority, governing the area. This is because the rights of a sovereign state
extend only to its territory. [There must be a physical area that is claimed by a state as its
territory. It must occupy the area.The state must exercise its jurisdiction within a defined
territory. Indeed the importance of territory to related concepts such as territory, integrity and
jurisdiction is fundamental. Kenya must exercise its power within its territory.]
For instance a change in ownership of a particular territory involves also a change in the
sovereignty, legal authority governing the area.
Since the rights of a sovereign state extends only to its territory, the state may and does
exercise all those rights to which it is entitled as a subject of International Law over its
territory. [Kenya can only exercise its jurisdiction in its territory. Among certain rights are the
rights to make, adjudicate and enforce its Municipal Law. Kenyan laws as a general rule do not
have extra territorial jurisdiction. The laws are only applicable and are binding only in Kenya.]
However, other states may have concurrent jurisdiction based on extraterritorial
jurisdiction principles.E.g Aircrafts ,ships.. Kenya Airways is regarded as Kenyan territory.

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While KQ is on foreign Land, it is subject to that law on foreign territory. When a foreign vessel
docks at Kilindini harbor ,it is subject to Kenyan Jurisdiction.
Whatever happens above the ship is subject to the jurisdiction of the Kenyan Territory. Whatever
happens below that ship is subject to the jurisdiction of the flagged state.
READ :WILDENHUS CASE
The territory of a state comprises all land areas including subterranean areas(below
surface terrain), waters including national rivers,lakes, territorial sea, appertaining to
the land and the sea bed and subsoil of the territorial sea and the airspace over the land
and the territorial sea.
12 nautical miles of the lowest water mark.
12 nm
TS
Continental shelf at the bottom of sea. 12nm from baseline and are territorial waters..
Before the 12nm are internal waters on the left of baseline. 200nm is the Exclusive
Economic Zone, EEZ. Beyond the 200nm are high seas that is no man’s land.
Territorial sovereignty may be exercised over various geographical features analogous
to land territory including islands, ice-lake, rocks and reefs.
Territory may be Terra -Nulliusconsisting of the same subject matter i.e. land, internal
waters legally susceptible over acquisition by states but not yet placed under territorial
sovereignty. Terra nullius is ownerless territory not under any state or no man's land.
The Res Communis consisting of the high seas and the outer space is not capable of
being placed under any state sovereignty. (Belongs to all in general and no one in
particular).These are areas governed under the regime of the common heritage of
mankind or Res Communis is governed under the regime of the common heritage of
human kind. (Exam question). Outer space is not subject to Kenya’s territory – Moon
Treaty.

THE ACQUISITION OF TERRITORY

How are territories acquired?

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Customary International Law distinguishes several modes by which sovereignty can be
acquired over a territory. The five modes by which territory has traditionally been said
to have been acquired are:
1. Occupation.
2. Prescription.
3. Accretion.
4. Cession.
5. Annexation.
These modes are not however exclusive and exhaustive because in practice it is unlikely
that any single mode would be evident in isolation.
1. Occupation
It is an original mode of acquisition whereby a state acquires sovereignty over aterra-
nullius whether newly discovered or abandoned by the former sovereign. Territory
inhabited by indigenous tribes or people having a social or political organization cannot
be of the nature of terra nullius. For instance in the case of Western Sahara – READ
THE ADVISORY OPINION OF ICJ ON WESTERN SAHARA AND ALLEGED
OCCUPATIONBY MOROCCO .
In determining whether or not an occupation has taken place in accordance with
International Law, the principle of effectiveness is applied. Territory is occupied when it
is placed under effective control by the occupying power a relative concept that varies
according to the nature of the territory concerned.
In the legal status of Eastern Greenland case, the Permanent Court of
InternationalJustice stated that for occupation to be effective as a basis of a claim to
sovereignty over territory two elements must be shown to exist namely:
1) The intention and will to act as a sovereign (Animus Possidendi)
2) Actual exercise or display of authority.

The requirement of the animus possidendi is important in three respects

a) The activity must be that of the state or its authorized agent and not that of a mere
individual
b) The activity must not be exercised by the concept of any other state.

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c) The activity taken as a whole must have no other explanation but the assumption of
pre-existing sovereignty
In other words all the facts must evidence nothing less than a permanent intention and will to
assume and manifest control over the territory.There must be an intentional display of
power and authority over the territory by the exercise of jurisdiction and state
functions over a peaceful and continuous basis.
The requirement of actual exercise or continued display of authority may be satisfied by
concrete evidence of state activity consistent with sovereignty such as the taking of
legislative or executive measures affecting the territory concerned, fixing boundaries or
concluding agreements with other states recognizing the claimant's state sovereignty
over the territory. A mere act of discovery by one state without more is not sufficient to
confer title by occupation.Such incomplete appropriation must give way to a
continuous and peaceful display of authority by another state.
In The Island of Palmas case(1928)(The Netherlands V USA Case) UNRIAA 829
The sole arbitrator Max Huber, found that the Dutch had a better title to the island
having peacefully and continuously displayed state authority over the island from at
least 1700-1906 when this dispute arose thereby supplanting Spain as the sovereign.
In 1906 a dispute arose between the US and the Netherlands concerning sovereignty
over the Island of Palmas, an island in the Philippines archipelago. The US believed The
Island of Palmas to be included in the “Archipelago Known as Philippines Islands”
ceded to it at the 1898 Treaty of Peace between the US and Spain which had been at war
and ended in the signing of a treaty. The Netherlands however considered the Islands
of Palmas as forming part of the territory in the East Indies actually under Dutch
control.
The dispute was referred to the Permanent Court of Arbitration at the Hague for
settlement by a single arbitrator who was to “determine whether the Island of Palmas in
its entirety forms a part of the territory belonging to the USA or of the Netherlands
territory.”
The arbitrator held that the Island of Palmas formed in its entirety a part of the
Netherlands territory because even if Spain did originally have sovereignty over the
island, the Dutch had administered it since the early 18 th century and there was no

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evidence to establish any acts of display of sovereignty of Spain or another power such
as counter balance or annihilate the manifestations of Netherlands sovereignty.
Minquiers and Ecrehos Case 1933.I.C.J (Pg 14 no 16)
The Minquires and Ecrehos Islands are a group of Islands and rocks and they lie
between Jersey and Coast of France . They are of value to fishermen and both U.K and
France claimed exclusive authority by inherent or original title which they contended
they had always maintained and never lost. The U.K's claim was based on entitlements
of William the conqueror to the territories. On the other hand the French Claim was
founded on the allegation that the title was lost as a result of the disintegrationof Duchy
of Nomady. By compromisthe two countries submitted their dispute to the I.C.J with
the request for the I.C.J to " determine whether the sovereignty over the Islands and
rocks ( in so far as they are capable of appropriation of Minquires and Echros
respectively belong to the U.K or French Republic)" In appraising the relative strength
of opposing claims to sovereignty , the court stated that it attached " In particular ,
probative value to the acts ,which relate to the exercise of jurisdiction and local
administration and legislation")
In upholding the UK claim to sovereignty , the court referred to the exercise of criminal
jurisdiction, the holding of inquests , the imposition and collection of taxes , the
registration of sales of land, and to a British Treasury Warrant of 1875, including the
Echros rocks held that these were functions that involved manifestations of UK
authority in respect of the Islands.

*Related to the issues of continuous display of authority is the question of the date at
which sovereignty comes to be assessed. This critical date is the date beyond which
further evidence of the exercise of sovereign authority will not be allowed. In the Island
of Palmas case, the intertempo rule has to be applied – the rule at the time of
occupation of Spain. Mere discovery and occupation is sufficient to prove the case – see
intertempo rule. There has to be manifestation of authority. In essence it is the date in
which the rights of the dispute has so crystallized that whatever happens it does not
affect the. The critical date is the date beyond which further evidence to the exercise of
sovereign authority will not be allowed.
This judicial technique is important for two reasons
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1) It establishes a point beyond which the parties will not be called upon to provide
evidence of authority.
Particularly in the case of uninhabited or sparsely inhabited territories, it would make
little sense to require that the display of authority be constantly in evidence. Territory
A nomadic or very few, and keep on moving up and down.
2) In the case of disputed territories, where the dispute arises in respect of the initial
circumstances of acquisition rather than the display authority thereafter, the critical
date will be important in determining which factors are to be taken into account by the
court or tribunal.
3) In the Island of Palmas, the arbitrator had to decide whether spain still had title to the
island in 1898 when treaty was signed so that it couldl by a treaty of that date have
sovereignty to the USA. So 1898 was a critical date and the arbitrator decided that by
that date the Netherlands had acquired better title than spain.
Note the case…must rd (14 and 17)
A state may ratify an act by one of its nationals, purporting to appropriate territory on
its behalf. The activities of chartered companies and corporations to which powers of
acquisition and government may have been delegated by the state will also be regarded
as state activity in relation to the acquisition of territory.
2. Prescription
Prescription, like occupation is based on effective control of a territory but whereas
occupation is acquisition of terra- nullius, prescription is the acquisition of territory
which belongs to another state or sovereign.
According to Ian Brownlie, the essence of prescription is the removal of defects in a
putative title arising from usurpation of another’s sovereignty by the consent and
acquiescence by the former sovereign.
Kenya cannot take Uganda to ICJ over Migingo as in 1965 Commonwealth countries
cannot take another to ICJ over disputes.
There are four requirements for acquisitive prescription.
1) First, possession must be exercised a titre de soverain (title of the sovereign). There
must be a display of state authority and the absence of any recognition of
sovereignty in another state.

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2) Effective control necessary to establish title by prescription must be accompanied by
acquiescence in the part of the former or losing sovereign. Consequently protests or
other acts or statements which demonstrate a lack of acquiescence may prevent
acquisition of title by prescription.
For instance, in the Chamizal Arbitration -U.S.A Vs. Mexico(Vol. 5 AJ IL Pg. 782(911), the US laid claim
to a 600 hectares tract of the Mexican territory called Chamizal Tract which had become joined to US
territory by the movement of Rio Grande River southwards (The river makes the international boundary
between the US and Mexico) inter alia on the ground of uninterrupted possession. The claim failed
because Mexico had made a number of protests to the US and indeed as a result of these protests a
convention had been signed in an attempt to settle the rights of the two nations with regard to the
changes brought out by the action of waters of the Rio Grande. Therefore, in the opinion of the Arbitral
Commissioners, diplomatic protests by Mexico prevented the title arising in favour of the US. If there is
no acquiescence, the former has no claim on the land.
3) The possession must be public. If there is to be acquiescence then there must be
publicity.
4) Finally the possession must be persistent
The effective control necessary to establish title by prescription must last for a longer
period of time than the effective control which is necessary in cases of occupation.
The length of time required is a matter of fact depending on the particular case because
there is no fixed period.
Kasikili Sedudu Island Case (Botswana/Namibia)(1999) I.C.J Rep. 1045
Facts : (/ bilateral agreement to refer matter to ICJ by COMPROMIS) On May 17th 1996 Botswana and
Namibia jointly filed a submission to the International Court of Justice requesting the Court’s settlement
of a boundary dispute around Kasikili/Sedudu Island.
Accompanying this request, Botswana and Namibia jointly submitted the text of a Special Agreement
signed on February 15th, 1996 referencing the Anglo-German Treaty of July 1890. This treaty established
an agreement between the colonial powers of Great Britain and Germany and their respective spheres of
influence over the two African nations. On these grounds and the principles of international law, both
parties requested “the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the
legal status of the island.”The Court ruled by eleven votes to four, that the boundary follows the Chobe
River around the island and that the island itself forms part of the territory of Botswana.
The plaintiff, the nation of Botswana, argued that the island should be considered its territory unless it
could be proven that the main channel passes through the south region of the island, and therefore falls
within the sovereignty of Namibia. Botswana held that the north and west channels of the Chobe River
constitute the “main channel”, and in accordance with the provisions of the Anglo-German Agreement of
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1890, establish the boundary between the two nations. Accordingly, Kasikili/Sedudu Island falls
exclusively within the sovereignty of Botswana.
The defendant, Namibia, claimed that the main channel of the Chobe River indeed passes through the
south of the island and that “Namibia and its predecessors had occupied, used, and exercised sovereign
jurisdiction over Kasikili Island [with the knowledge and acquiescence of Botswana] since at least 1890.”
As such, Kasikili/Sedudu Island is a territory governed by the sovereignty of Namibia.
Questions
1. Where exactly is the main channel of the Chobe located geographically in relation to Kasikili/Sedudu
Island?
2. How is the “main channel” defined and observed in relation to both nations, Botswana and Namibia?
3. What exactly is the dividing line between the colonial spheres of influences [established by the
provisions of the Anglo-German Agreement of 1890], and why is this specific division important?
4. To what extend had Namibia “officially” occupied and exercised sovereignty over Kasikili/Sedudu
Island?
5. Is the historical occupation of the island important? If physical characteristics of the land or water have
shifted over time, should old maps be considered, as le gitimate geographic references?
6. Is navigability a legitimate criteria to be used for identifying and delineating the path of the Chobe
River’s “main” channel?
Decision
1. On December 13th, 1999 the Court delivered its official judgment. The Court held, with eleven votes to
four, that “the boundary between Namibia and Botswana around Kasikili/Sedudu Island followed the line
of deepest soundings in the northern channel of the Chobe and that the island forms part of the territory of
Botswana.” The Court also ruled that while Namibia had historically occupied the island, the State
functions in which it participated during seasonal occupation did not constitute ownership.
2. The 1890 Treaty was used as important historical context for the definition of “thalweg”, or main
channel, which maintained a legally defined association with navigability. The Court upheld the
definition of thalweg as “the line of deepest water along the length of a river channel…characterized by
two and a smooth bed”. The Court asserted that it could not draw conclusions from the cartographic
material with the absence of any map officially reflecting the intentions of the parties to the 1890 Treaty,
in light of the “uncertainty and inconsistency of maps.”
Based on this criteria, the Court also ruled to uphold the 1985 conclusion of the South African
Department of Water Affairs, “the average depth of the thalweg of the North channel is greater than the
southern channel…the main channel of the Chobe passes Kasikili/Sedudu Island to the north of it.” The
Court added unanimously that, "in the two channels around Kasikili/Sedudu Island, the nationals of and
vessels flying the flags of, the Republic of Botswana and the Republic of Namibia shall enjoy equal
national treatment.”

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Principles
1. In order to appropriately determine the navigability of a water channel, inter alia , depth and width are
the most important measures, which must be considered. These measures are necessary to compute
volume capacity and the primary path of water flow. In this context, a water channel may be used in
determining the boundary between two states.
2. Occupation of a territory, á titre de souverain does not constitute legal ownership. In this case,
although Namibia used the island [the fertile Caprivi strip] for seasonal agriculture purposes, “its
functions of State authority were ultimately on behalf of Caprivi authorities.”- The Occupation must
be persistent
3. As determined by Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 1983 , the
evidentiary value of maps “constitutes information which varies from case to case; of themselves, and by
virtue solely of their existence,they cannot constitute a territorial title endowed by international law with
intrinsic legal force for the purpose of establishing territorial rights.”
4. The rule of equitable utilization of watercourses and cartography as well established principles of
International Law.
Conclusion
The ability of the ICJ to resolve this dispute is significant primarily because it resolved a long-standing
border dispute between the two African nations of Botswana and Namibia. This case is also important
because bridges the gap between law and science and demonstrates the extent to which great difficulty
exists in reconciling the two in a modern context. Of particular interest here is the fact that in addition to
the ten lawyers, six scientists also participated in court proceedings to resolve this dispute. This was a
necessary means of creating balance between historical precedents and the legal strain of this procedure
on a scientist’s logical rationale. This case also revealed that in essence the dispute centered around both
parties’ desire to procure political control and economic benefit from the rich natural resources and
potential tourist lure of Kasikili/Sedudu’s naturally occurring productive abundance.
3. Accretion
It occurs where new territory is added mainly through natural causes to territory
already under the sovereignty of the acquiring state. No formal act or assertion of title is
necessary since a state has the exclusive right of sovereignty over any additions of
silting or other deposits or resulting from the formation of islands within its territorial
waters. Or a volcanic island occurring in Kenya territorial waters, no formal claim or
assertion of title is required as territory includes territorial waters. Another example is
Netherlands and reclaiming land from the sea with dyking although this has reduced
the expanse of the sea according to UN convention on the law of the sea.

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It is immaterial whether the process of accretion has been gradual or
imperceptible/unnoticeable or whether it has been produced by a sudden or abrupt
transfer of soil provided that this has become embedded and is not in any event
identifiable as originating from another location.
Accretion can be of significance where a state boundary follows the course of a river. A
good example is river Ruvuma, that is the river between Tanzania and Mozambique
border - Thalweg – line connecting the lowest part of a river). Where a boundary river
under goes a sudden change of course (avulsion), this will not change a boundary line
and it will remain a centre line of the former boundary claimed.
Chamizal Arbitration (Rio Grande River)
River between Mexico and US Rio Grande what was part of Mexican soil remained its
soil despite US claiming the soil.

4. Cession
This is the transfer of territory usually by treaty from one state to another, the treaty
forming the legal basis of sovereignty. The treaty is the legal basis of sovereignty.
Cession rests on the principle that the right of transferring its territory is a fundamental
attribute of the sovereignty of a state. It may be either gratuitous or for some
consideration as for instance the sale of Alaska by Russia to the U.S in 1867 and may be
voluntary or compulsory as a result of a war conducted successfully by the state to
which the territory is to be ceded.
Contemporary IL - A cession by treaty is void where the conclusion of the treaty has
been procured/ concluded by threat or use of force contrary to the provisions of the UN
Charter.
For cession to be valid, there must be sufficient indication of an intention to transfer
sovereignty from one state to another. The receiving state takes all sovereign rights and
any limitations pertaining to the territory ceded. Ilemi triangle at the boundary of
South Sudan, Kenya and Ethiopia is disputed among these nations and may be having
oil – 10320 sq. kilometers.
Cession is an example of a derivative title. In fact,if there were defects in the state’s title,
the purported cession from the previous sovereign cannot cure the defects.

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In the Island of Palmas case the U.S claimed that by the 1898 treaty it acquired title to
the Island of Palmas from Spain. However, the arbitrator found that at the time of the
purported transfer of the island in 1898 sovereignty over the island lay with the
Netherlands and not with Spain. Spain could not therefore transfer to the U.S more
rights than she herselfactually possessed. Hence, since Spain had no title to the island in
1898 the U.S would not acquire title to the Island from Spain.
Bakassi Pensula-read
Article 94 of U.N Charter states -Each Member of the United Nations under- takes to comply
with the decision of the Inter- national Court of Justice in any case to which it is a party. If any
party to a case fails to perform the obligations incumbent upon it under a judgment rendered by
the Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the
judgment.
5. Annexation
This is the forcible acquisition of territory by one state at the expense of another.
In contrast to the other methods of acquiring territorial sovereignty the element of force
plays a decisive role in annexation.
Under traditional International Law, conquest was recognized as a means of acquiring
territory even in the absence of a treaty of cession but the acquisition of territory by
conquest was not lawful until hostilities have come to an end. Therefore, in the absence
of a peace treaty evidence was necessary that all resistance by the enemy state and its
allies had ceased so that they were no longer forces in the field to free the occupied
territory from the control of the conquering state.
An annexation can only be said to have taken place when not only the territory in
question has been occupied but also the intention to appropriate the territory
permanently has been shown (CORPUS ET ANIMUS).
In other words, even when a state has been completely subjugated ,there will be no
transfer of territory in the absence of an intention to annex it. For instance/Acordingly
in 1945 the victorious Allies expressly disclaimed their intention to annex Germany
although they had occupied all German territory and defeated her Axis Allies.
Annexation can take place in two ways:

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1) By a unilateral declaration after the conquest of the territory in question and the
final defeat of adversary.
If either element is missing there has been no annexation. With a declaration of
annexation, a state announces its intention of acquiring the territorial sovereignty of the
area in question.
2) By treaty usually under compulsionwhereby the ceding state is either forced to sign
a peace treaty after a military defeat or persuaded to agree by non-belligerent
means. In this case the legality of the territorial acquisition is to be found in the
treaty itself.
Whereas acquisition of territory by conquest might have been acceptable during the
period where there was no legal restriction on the right of a state to wage war,
contemporary International Law restricts the ability of the state to acquire territory by
conquest by placing limitation to the use of force. If the use of force is illegal, then
according to principle ex injuria jus non oritur, (“Law does not arise from injustice” is
aprinciple of Internatioal Law. The phrase implies that “unjust acts cannot create law”)
is legal title can never be acquired by forcible means. This is because:
a) The first blow to acquisition of territory by use of force was dealt by the U.S
Secretary of State H.L Stimson in January 1932 when he announced that the U.S
would not recognize a Japanese invention of Manchuria which was part of China
and the setting up of the puppet state of Manchukuo.
b) The following year the assembly of the League of Nations adopted a resolution
stating that , “ it is incumbent upon the members of the League of Nations not to
recognize any situation, treaty or agreement which may be brought about by
means contrary to the Covenant of the League of Nations or with the ‘Pact of
Paris”, that is to say the 1928 Kellog-Briand Pact which prohibited war as a
means to achieve political aims.
c) Besides, article 2 (3&4) of the UN Charter calls upon member states to settle their
“international disputes by peaceful means” and “to refrain in their
International relations from the threat or use of force against territorial
integrity or political independence of any state.” Accordingly, not only war but

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 also the use of force in any form is to be regarded as internationally wrongful act
from which in consequence no rights may be derived.
d) Besides, a number of U.N General Assembly and Security Council resolutions
emphasized this point.For instance, in 1970 the U.N General Assembly adopted
the Declaration of Principles of International Law concerning Friendly Relations
and Corporations amongstStatesin accordance with the Charter of the
UN.Resolution 2625) (XXV)of October 24, 1970 in which it declared that it was a
basic principle of international law that no territorial acquisition resulting from
the threat of use of force shall be recognized as legal.
e) Following the invasion of Kuwait by Iraqi armed forces on August 2, 1990 and
the Iraqi government announcement of its intention to annex Kuwait in order to
establish a ‘comprehensive and eternal’ merger between the two states, the U.N
Security Council adopted Resolution 662 (1990)of Aug 9th 1990 in which it
unanimously declared the purported annexation of Kuwait to be null and void
and called upon states and institutions not to recognize it and to refrain from any
action that might be interpreted as indirect recognition of annexation.
Further, Article 52 of the 1969 Vienna Conventionof the Law of Treatiesstate that a
treaty is void if its conclusion has been procured by the threat or the use of force in
violation of the principles of International Law embodied in the Charter of the U.N and
hence rejects the validity even of a treaty based annexation.
The modern rules prohibiting acquisition of territory by conquest are concerned only
with International wars and not with internal conflicts. No breach of International Law
is therefore committed when part of a state’s inhabitants succeeds in setting up a new
state by winning a civil war of secession or if the secession occurs with the express or
implied consent of the government in power.

Acquisition of territory by newly emerged states.

The acquisition of territory by newly emerged states such as decolonized dependencies
or the emancipated trust territories such as Tanzania possess a sui generis case. This is
because under classical International Law until a new state is created there is no legal
person in existence that is competent to hold title to territory.

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Jurists have suggested two basic modes of acquisition of title by such states:
1) By constitutional means through agreement and with the former controlling
administration in an orderly devolution of power.
2) Through non-constitutional means usually by force against the will of the previous
sovereign.
The granting of independence according to the other constitutional provisions of the
former power may be achieved either by agreement between the former power and the
new entity or by an internal piece of legislation by the previous sovereign.
In such cases, there is devolution of sovereignty from one power to another and the title
to the territory passes from the previous sovereign to the new administration in a
conscious act of transference. Our independence was an Act of Parliament in the U.K.
Title passed to Jomo in the Kenya National Archives. An order in council.
Different considerations arise where the new entity acquires title contrary to the wishes
of the previous authority as for instance or in the case of revolution. The principle of
self-determination may also be relevant considered. If the new entitythat emerges
conforms to the legal conditions of statehood, other states will have to make a decision
as to whether or not to recognize the new states and to accept the legal consequences of
this new status.

The Uti Possidetis Juris Principle

This principle dealt with preserving the sanctity of boundaries adopted by the
colonialists. The principle of Uti Possidetis Juris first developed among the Spanish
colonies of Latin America provides that the old colonial boundaries will be recognized
as the international borders of the newly independent ex-colonial states.
This principle was adopted by the OAU in its resolution of Border Disputes on July 21
1964 which provides that all member states of the OAU would respect the colonial
boundarieson attainment of independence. The function of the principle is to preserve
the territorial integrity of newly independent states. All African Nations are
conglomerations of nation states.
The principle has been recognized and applied by the ICJ in border disputes.For
instance in The Burkina Faso Vs. Republic of Mali (1986) ICJ Rep. 554, the International

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Court of Justice stated that the doctrine of Uti possidetis juris “is a general principle
which is logically connected with the phenomenon of obtaining of independence
whenever it occurs. Its obvious purpose is to prevent the independence and stability of
states being endangered by fratricidal struggles provoked by the challenging frontiers
following the withdrawal of the administering power.”Pg.565
Both states were formally French colonies being Upper Volta and French Sudan
respectively. Prior to this case being commenced before the court, the parties had
agreed that the Mediation Commission of the Organization of African Unity would
establish the delimitation of the frontier between the two states a stretch of territory
300kms which was thought to be rich in mineral resources.The mediation commission
having failed to establish a mutually acceptable delimitation of the frontier, the parties
submitted the disputes to a Chamber of the International Court of Justice, with a
request for the Chamber to resolve their dispute on the basis inter alia of “the principle
of intangibility of frontiers inherited from colonization.”
In its judgment the court stated that it could not disregard the principle of Uti possidetis
juris whose application gives rise to the respect for intangibility of frontiers.
The court emphasized that the principle is “a firmly established principle of
International law where decolonization is concerned” and that although it was first
invoked and applied in Latin America “the principle is not a special rule which
pertains solely to one specific system of International Law.”

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THE PRINCIPLES of JURISDICTION
Introduction
The jurisdiction of a state describes the power of the state under International Law to
exercise its authority over persons’ activities and property by the use of its Municipal
Law.
Jurisdiction is a fundamental aspect of sovereignty and refers to the legislative,
administrative and judicial powers of government.International law distinguishes three
different kinds of jurisdiction;
1. Jurisdiction to Prescribe prescriptive or legislative jurisdiction
This refers to the authority of the state to make and apply its laws to persons, properties
and activities within its territory.
2. Jurisdiction to adjudicate adjudicative jurisdiction
This refers to the authority of a state to subject particular persons, properties and
activities to its judicial process, that is, the competence of courts to bring parties before
them and to render authoritative judgment.
3.Jurisdiction to enforce (administrative or enforcement/ executive or prerogative
jurisdiction)
This refers to the authority of a state to use the resources of government to induce or
compel compliance with its law for instance through arrest of persons or through
seizure of property.
As a general rule a state’s prescriptive jurisdiction is unlimited and a state may legislate
for any matter irrespective of where it occurs or the nationality of the persons involved.
We have witnessed cases where foreigners are arrested and jailed to serve sentences in
Kenya.
When the Government enacts the law then the law is applicable to every person in Kenya or
foreigners in Kenyan except those protected with immunity. (Exam)
However, the sovereign equality of states means that one state may not exercise its
enforcement jurisdiction in a concrete sense over persons or activities actually situated
in another states territory irrespective of the reach of its prescriptive jurisdiction at least
not without the latter state’s consent.
For instance a person may commit an offence in Kenya and then escape to the Uganda.

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The Kenyan courts have jurisdiction to try that person but the Kenyan police cannot
enter Ugandan territory and arrest him except under the terms of a treaty or with some
other forms of consent from Uganda.
If the Kenyan police did, this would be contrary to the well established rule of
International Law that one state may not perform acts of sovereignty on the territory of
another state without the latter’s consent.
As a corollary to these principles, a state’s enforcement jurisdiction within its own
territory is presumptively absolute over all persons and matters situated therein.
In practice the 3 kinds of jurisdiction are often interdependent. Jurisdiction to
prescribe may be more acceptable where jurisdiction to adjudicate or enforce is
available. Parliament cannot legislate if the laws enacted cannot be implemented or
enforced.
Jurisdiction to adjudicate may be more acceptable where the forum state also has
jurisdiction to prescribe by virtue of its links to the person’s interests, relations or
activities involved. The High Court cannot assume jurisdiction over foreigners, it can
only assume adjudicative prescription if it recognizes the jurisdiction of the foreign state
e.g. married couples.
Problems of jurisdiction feature quite generally in international relations and
governments often have to decide how far to assert their authority and when to oppose
the exercise of jurisdictional authority by other states. The example of foreign ships
docking into the harbor in Kenya and airplane, BA, at JKIA when doors are open where
jurisdiction is Kenyan. For the ship, below the deck is the jurisdiction of the ship state
and above the deck is on the jurisdiction of the state where the ship is – concurrent
jurisdiction.
1.Prescriptive jurisdiction
State parties as evidenced by the resolution of International Conferences and the
Jurisprudence of National Courts disclosed five basic principles on which extensive
prescriptive jurisdiction is claimed by states. These are as follows;
1. The Territorial principle
2. The Nationality principle
3. The Protective principle

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4. The Passive personality principle – injurious done by foreigner
5. The universality principle – principle under which it is exercised by Kenya on behalf
of international community. Eg. piracy
All of the above operate extra territorial.
1. THE TERRITORIAL PRINCIPLE
The territorial principle determines jurisdiction by reference to the place where the
offence is committed and stems from the most essential attributes of states sovereignty
namely a distinct and delineated territory, a known and loyal population and an
independent government.
A state must have jurisdiction to independently govern its own population in its own
territory. The law of the state applies to all persons, property and activities in the
territory over which it has jurisdiction unless a contrary intention appears. Law is blind
and does not discriminate on any basis – gender etc. Diplomats are not above the law.
They may have immunity but are liable to any crimes committed by them. The
immunity can be waived for prosecution to happen.
For purposes of International Law and exercise of territorial jurisdiction, the territorial
waters, a ship flying its flag, an aircraft registered in its territory and the ports of a
coastal state have been assimilated to its territory. KQ is registered in Kenya and
whatever happens will be governed by Kenyan law. Kenya has no registered ships.
Under International Law if there is someone who hijacks a plane which is a continuing offence
and every state through whom the aircraft passes, the states have the power or jurisdiction over
that hijacking.
Apart from this assimilation, state practice has extended the principle of territorial
jurisdiction in order to justify action taken in cases where one or more constituent
elements of an act or offence took place outside the territory of the state – accessory
before the fact.International communication and transport have led to the commission
of crimes in one state which were engineered or prepared in another state. States in
whose territory such ancillary acts took place declined to prosecute or punish the
offenders responsible on the ground that because the acts were a principal accessory to
the committed offence elsewhere, the territorial jurisdiction did not apply.

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A group of students cross the border to TZ, and start organizing how they can
overthrow the government of Kenya and come back to do so in Kenya. TZ has
jurisdiction over the students as they committed the offence on TZ territory.
However, a distinction was made between subjective territorial principle and
objective territorial principle.
a) Subjective territorial principle- The state where the act commenced has
jurisdiction under the subjective territorial principle
b) Objective territorial principle/ effect principle- the state where the act is
completed or consummated has jurisdiction under the objective territorial
principle. Case :SS.Lotus case
The state where the act commenced has jurisdiction under the subjective territorial
principle while the state where the act is completed or consummated has jurisdiction
under the objective territorial principle (also sometimes called the effect principle based
on the fact that the injurious effect although not the act or omission itself occurred on
the territory of that state.
Examplesinclude a man firing a gun across a frontier and killing another man in a
neighboring state or a man obtaining money by false pretences by means of a letter
posted in Kenya to a recipient in Nigeria.
The objective territorial principles received judicial support in the SS.Lotus case when
the majority of the Permanent Court of International Justice by assimilating the Turkish
vessel to Turkish territory brought the case under the objective territorial jurisdiction.
The court held, “the offence produced its effect on the Turkish vessel and consequently
in a place assimilated to Turkish territory in which the application of Turkish criminal
law cannot be challenged even in regard to offences committed there by foreigners.”
Turkey had not acted in violation of the International Law in the arrest, trial and
conviction of the French officer on watch at the time of the collision.
2.THE NATIONALITY PRINCIPLE
The Nationality Principle determines jurisdiction by reference to a nationality or
national character of the person committing the offence and it is the most fundamental
principle of extra-territorial jurisdiction. Under this principle a state’s laws may be
applied extra-territorially to its citizens, individuals or corporations whenever they may

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be found. The competence of a state to prosecute and punish its nationals on the sole
basis of their nationality is based upon the allegiance of which the person charged with
a crime owes to the state of which he is a national.A person or a corporation located for
doing business in a foreign country mayaccordingly be subject to not only the territorial
jurisdiction of a foreign state but also to the jurisdiction of the national
government.Nationality is an accepted basis for exercise of jurisdiction in cases where
offences are committed in such places as the high seas or outer space( Res-communis)
where the territorial jurisdiction is inapplicable (res communis- no state has jurisdiction
over them).
State practice distinguishes between active nationality and passive nationality
principles:
a) Active Nationality Principle - jurisdiction is assumed by the state of which the
person against whom proceedings are taken is a national. This principle is
conceded by international law to all states desiring to apply it. Kenya can punish
me wherever I am since I am its national.
b) Passive Nationality Principle-jurisdiction is assumed by the state of which the
person suffering injury, that is, the victim is a national.
State practice distinguishes betweenactive nationality and passive nationality
principles .Under the former, jurisdiction is assumed by the state of which the person
against whom proceedings are taken is a national. This principle is considered by
International Law to all states desiring to apply it.
Starke submits that there is indeed a correlative principle of the law of extradition that
no state is bound to extradite from its territory a national accused of or guilty of an
offence committed abroad. If there is a conflict of jurisdiction, one commits an offence in
UK and comes back to Kenya, can be protected as a national. See the Lockerbie Case on
Pan Am 103 and the two Libyans prosecuted – US and UK pressure where they were
tried in Netherlands.
Under the later Passive nationality principle, jurisdiction is assumed by the state of
which the person suffering the injury, the victim is a national.Under this principle, a
state may exercise jurisdiction over all crimes where the victim was its national
irrespective of the place where the crime was committed or the nationality of the

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offender once the offender comes within its jurisdiction. Offenders can be arrested if
you are able to identify them in Kenya who offended you elsewhere or in their country.
The justification for the exercise of jurisdiction based on this principle is that each state
has a right to protect its citizens abroad and if the territorial state of the locus
delicti(scene of crime – place where the injury, tort or offence was committed) neglects
or is unable to punish the persons causing injury, the state of which the victim is a
national is entitled to do so if the persons responsible comes within its power.
Troops or soldiers are not treated like ordinary citizens they enjoy state immunity. )
Ministry of defense v Ndegwa (Ref to pg 16 case no 28)
Foreign diplomatic missions are not part of the Kenyan territory. They enjoy immunity
under that state.
It was partly on the basis of this principle that in theCutting Case (1886) 1887
U.SForeign Relations 757.
A court in Mexico assumed criminal jurisdiction over an American citizen for the
publication of a defamatory statement against a Mexican citizen in a Texas Newspaper.
1. Cutting an American citizen was prosecuted in a Mexican court and convicted of
libel committed in the publication of a newspaper in El Paso, Texas. The U.S
protested but the Mexican government asserted the propriety of the proceedings
under Article 186 of the Mexican Penal Code which provided that “Penal
Offences committed in a foreign country by a Mexican against Mexicans or
Foreigners, or a Foreigner against Mexicans may be punished in the Republic” if
they have not been tried elsewhere and if the accused is in the Republic
voluntarily or as a result of extradition. The victim of the alleged libel was a
Mexican national and the accused had resided in Mexico “off and on” for 18
months. The charge against the accused was later amended to include libel
committed in Mexico through the circulation in Mexico of the newspaper
containing the defamatory statement. Read the Ministry of Defence v. Joel Ndegwa (1982
– 88) 1 KAR 135.

Read the Lockerbie case

NB: Foreign diplomatic missions are not part of the Kenyan territory. They enjoy
immunity under that state.
3. THE PROTECTIVE PRINCIPLE
Under the protective principle jurisdiction is determined by reference to the national
interest injured by the offence. Accordingly, a state may exercise jurisdiction over
foreigners who have committed acts abroad which are deemed prejudicial to the

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‘security’ of the state concerned. The principle is justifiable on the basis of protection of
a state’s vital interests since the foreigner might not be committing an offence under the
law of the country where he is residing and extradition may be refused especially if the
offence is of a political nature.State jurisdiction is based on conduct outside its territory
that threatens its security as a state or the operation of its governmental functions
provided the conduct is generally recognized as a crime under International Law.
Accordingly in the US v Pizzaruso 392 US 936 (1968) - The defendant Jean Philomena
Pizzaruso a citizen of Canada was convicted in the Federal Court of the Southern
District of New York of the crime of knowingly making under oath a number of false
statements in her visa application at the US Consulate in Montreal Canada thereby
violating US Immigration Laws. On appeal the Court of Appeal affirmed the decision of
the lower court stating;“‘the utterance by an alien of a false statement with respect to a
material fact’ in a visa application constitutes an affront to the very sovereignty of the US. These
false statements must be said to have a deleterious/harmful influence on valid governmental
interests…a violation of the immigration laws is completed at the time that the alien perjures
himself in the foreign country.”
The protective principle has also been recognized as a basis for exercise of jurisdiction
over aliens involved in espionage, counterfeiting of the states seal or currency,
falsification of official documents and conspiracy to violate immigration or customs
laws. The principle may be seen as a special application of the effect principle (Objective
Territorial Principle)but it has been treated as an independent basis of jurisdiction.
READ JOYCE CASE 1946
Although most states use this principle there is nevertheless the danger that some states
may abuse the principle if “security” or “vital interests” are given a broad
interpretation. For instance if a paper published in state A criticizes State B, state B may
claim jurisdiction to try the editor of the paper for sedition.
The protective principle must not be confused with diplomatic potential which refers to
the right of the state to intervene diplomatically or to raise an international claim on
behalf of its national against another state.

4. THE PASSIVE PERSONALITY PRINCIPLE

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[Emphasizes on the states interests suffering]
The passive personality principle is essentially a variant of nationality principle. It
determines jurisdiction by reference to the nationality or national character of the
person injured by the offence. Under this principle a state has jurisdiction to punish
aliens for harmful acts committed abroad against its nationals.This principle is difficult
to justify in theory and state practice shows that it is rarely invoked/advancedfor
purposes of assertion of jurisdiction withsome countries claiming it is contrary to
International Law. However, the principle been successfully relied on in a number of
cases. For instance, in US v Yunis (83) AJIL 94 (1989) the US, the US based its
jurisdiction to prosecute a Lebanese national for his alleged hijacking of a Jordanian
airliner in the Middle East in part of the passive personality principle. Yunis, a Lebanese
citizen and resident was charged by the US for his alleged involvement in the 1985
hijacking of a Jordanian civil aircraft in the Middle East. The only nexus of the aircraft in
the US during the hijacking was the presence of a number of American nationals in the
flight.The aircraft was registered in Jordan and flew the Jordanian flag but never landed
on the American soil or overflew American airspace. In September 1987, more than two
years after the hijacking Yunis was lured by agents of the FBI into international waters
off the coast of Cyprus where he was apprehended and forcibly taken to the US.
The defendant moved to dismiss the indictment on the grounds that under the general
principles of International Law, the US court lacked subject matter and personal
jurisdiction over a crime committed by a non-resident alien on foreign soil and that the
U.S Federal law provided no independent basis for the exercise of such jurisdiction.
He argued that the universal and passive personality principles, the only potential basis
for a certain jurisdiction over extra-territorial crimes allegedly committed by him was
inapplicable in the instance case. He contended that ‘neither hostage taking nor aircraft
piracy nor aircraft hijacking are heinous crimes encompassed by the universal doctrine’
and further that the US did not recognize passive personality principle as a ‘legitimate
source of jurisdiction.’ Jurisdiction ratione personae – refers to a court’s power to bring
a person into its adjudicative process. It is the jurisdiction over a defendant’s personal
rights , rather than merely over property interests. Ratione Personae is a Latin term

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which means by reason of his person. Aerial hijacking and piracy are international
crimes. Yunis was lured and arrested on international waters.
The court held that both the universal and passive personality principles provided an
appropriate basis for jurisdiction in this case. The court stated that the International
community recognizes the legitimacy of the passive personality principle and explicitly
approved the principle as a basis for a certain jurisdiction over hostage takers. In
asserting jurisdiction the court stated, “ not only is the US acting on behalf of the world
community to punish alleged offenders of crimes that threatened the very foundations of world
order but the United States has its own interest in protecting its nationals.”
5. THE UNIVERSALITY PRINCIPLE
The principle determines jurisdiction by reference to the custody of person committing
the offence. Under this principle each and every state has jurisdiction to try and punish
perpetrators of crimes against humanity for the international community as a whole. An
offence subject to the universality principle is one which comes under the jurisdiction of
all states wherever it is permitted. In as much as the offence is contrary to the interest of
the international community it is treated as a Delicti Jure Gentium(slave trade, piracy,
genocide, terrorism etc) and all states are entitled to apprehend and punish the
offenders. The power of a state to punish crimes wherever and by rules of whomsoeverr
has committed is without the requirement of connection to territory, nationality or
special state interest.
States are granted the liberty to prosecute persons under their national laws for acts
which are prosecuted by International Law. The exercise of jurisdiction is justified by
the universal condemnation of the acts and general interest in cooperation to suppress
them as a matter of customary International Law or widely accepted multi lateral
international agreements.
Universal jurisdiction depends solely on the nature of the offence committed and is
principally exercised by the state which has apprehended the alleged offender.
The state may prescribe and prosecute offences provided in a number of treaties on
matters of general international concerns such as drug trafficking, hijacking and
sabotage of aircraft, apartheid, attacks on diplomats, taking of hostages and torture

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besides customary law crimes such as piracy, slavery, genocide, crimes against
humanity and war crimes.
The state which prosecutes and punishes a pirate or a war criminal under its national
law acts solely as the organ and agent of the international community and metes out
punishment to the offender for his breach of the prohibition imposed by International
Law. Accordingly in Eichmann v AG of Israel 1962 vol 36 ILR pg 277, the Supreme
Court of Israel held that in punishing war crimes pursuant to the universality principle
the state was “acting in the capacity of guardian of International Law and agent for its
enforcement.” Adolph Eichmann a Nazi functionary of German or Austrian nationality
who was concerned in the Final Solution of large numbers of Jewish persons of German,
Polish and other nationalities prior to the 1945 defeat of Germany escaped to Argentina.
There he was tracked down by Israeli secret agents by order of the then Prime Minister
Ben-Gurion ceased and abducted to Israel. He was involved in the Holocaust that
carried out extermination of Jewish persons. By that time, there was no state called
Israel and there were no Israel nationals. He was charged under the Israeli Nazi and
Nazi Collaborators (Punishment Law of 1950) with 15 counts of war crimes and crimes
against humanity. It was alleged on his behalf that the exercise of jurisdiction by the
court of Israel in respect of the crime committed outside Israel and before Israel had
been created against persons who were not Israel citizens was contrary to International
Law as was the prosecution consequent upon an international abduction….he was
arrested by Mossad against the municipal laws of Argentina. The court found him
guilty and his appeal was dismissed by the Supreme Court. The Supreme Court stated,
‘… the crimes of which the appellant was convicted…have always borne the stance of
International crimes banned by International Law and entailing individual criminal liability. It
is the particular universal character of these crimes that vests in each state the power to try and
punish any who assisted in their commission.”
Read Nuremberg Tribunal.
Besides piracy and war crimes states have jurisdiction to define and prescribe
punishment for slavery attacks on and hijacking of aircraft and genocide.
These and other International crimes have been addressed in a number of treaties that
provide for unilateral jurisdiction as a manifestation of international concern. The

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governing principle in all these cases isaut punire aut dedere or aut dedereaut
judicare(either extradite or prosecute) that is the offenders must be punished by the
state on whose territory they are found or must be extradited to the state which is
competent and desirous of exercising jurisdiction over them.

Illegally Obtained Custody

The exercise of jurisdiction over persons apprehended in violation of International Law
poses difficult questions as there is no consensus among jurists and state practice is
disparate. For instance, the forceful abduction of Eichmann in violation of Argentina
territorial integrity was not a bar to the exercise of jurisdiction by the Israeli court.
The tribunal does not normally concern itself with the means by which the accused is
brought before it.For instance, unlawful arrest does not affect the court’s jurisdiction to
hear a case. Accordingly a state will in the absence of protest from other states try
alleged offenders brought before its courts by irregular means. However the state
whose sovereignty has been violated may initiate an international claim against the
offending state.In the Eichmann case, Argentina did not however demand the return of
Eichmann although it complained to the UN Security Council by a joined communiqué
issued on the 3rd August 1960, Argentina and Israel resolved “to regard as closed incidence
which arose out of the action taken by citizens of Israel, which infringed the fundamental rights
of the state of Argentina.”

In the case of US v Alvarez-Machain (1992)112, the US Supreme Court held that the
American court had jurisdiction to try the accused abducted from Mexico as long as the
manner in which he was brought before the court in question did not violate the terms
of any treaty between the states involved.
In 1985 a US special agent in the Drug Enforcement Administration was abducted by
drug dealers in Mexico and afterwards tortured and murdered. Apart from the fact that
the victim of the crime was an American citizen all the other aspects of the offence took
place in Mexico. The US special agents ceased Alvarez Machain, a medical doctor and
Mexican citizen in Mexico and flew him to the US by private aircraft. There he was
arrested and charged with having participated in the torture and killing of the US
special agent. At that time, the US and Mexico had an extradition agreement between

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them to facilitate the extradition of suspected criminals from one country to the other.
The Mexican Government protested to the US government alleging that the abduction
of Alvarez Machain violated the terms of the extradition agreement as well as general
principles of customary International Law namely the traditional principles for
founding jurisdiction– nationality, universality principles etc. At his arraignment in a
District court the accused argued that he US court lacked personal jurisdiction (rationae
persona) interalia because his abduction has been carried out without the consent of the
Mexican government contrary to the provisions of the extradition agreement between
the two states. Accordingly, he argued that the violation of the international obligations
contained inthat agreement by the US government from conducting criminal
prosecution. The district court upheld these arguments and ordered the release of the
accused. The US government appealed this decision which again found in favor of the
accused. In response the authorities made a further to the supreme court. The Supreme
Court held that the American court had jurisdiction to try the accused as long as the
manner in which he was brought before the court in question did not violate the terms
of any treaty between the states involved. The court analyzed the extradition agreement
and found that since there was no express prohibition of abduction but only an implied
one, the agreement did not bar the US government from carrying out the criminal
prosecution. In contrast, in ex-parte BENNETT (1993) 3 ALL ER 138 (1994), IA.C.42(all
England Law Reports), the UK house of lords held that when a defendant presence
before the court had been procured by abuse of process, the UK courts should decline to
exercise jurisdiction unless the UK authorities participated in or procured or connived
in the apprehension in violation of IL.
Exparte Westfallen (1998), Vol. 4 A .E .R 210

All these principles are not exclusive and can be applied together at the same time. See
also the case of Noriega of Panama who was captured by the US in Panama territory
and convicted in US on crimes of drug trafficking.

ENFORCEMENT JURISDICTION

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 The international law governing the enforcement jurisdiction is based on one
basic principle namely enforcement jurisdiction cannot be exercised in the
territory of another state except on the consent of the other state.
In other words enforcement jurisdiction is in principle is limited to the territory
of the state concerned.
Examples of cases of such consent include agreements where the law
enforcement agents of one state may be allowed to enter the territorial waters of
another state to pursue vessels suspected of being engaged in trafficking illicit
drugs and or piracy.
A special application of this principle is that courts of one state will generally not
enforce the public laws of another state such as criminal or taxation laws that
manifest the states sovereignty over its territory.

CONFLICTS OF JURISDICTION
In practice the five basis of exercise of jurisdiction do often overlap. For instance a state
may on the basis of the nationality principle reach its nationals abroad but the conduct
of that state may on the basis of the territorial principle also be within the jurisdiction of
the foreign state in which these nationals act.{Lecturer's Explanation: we saw this
yesterday, as a Ugandan Uganda will extend its jurisdiction to him on the basis of Nationality.
The same is true also that as a national of Kenya , wherever you go, Kenya has jurisdiction over
you. but when you are in a foreign state that state has jurisdiction over you by virtue of you
being in that foreign state territory. So if you are from Uganda and residing in Kenya that
means you are under both the Ugandan Jurisdiction by virtue of Nationality and under Kenyan
jurisdiction by virtue of territoriality or the Territorial Principle. So you are as it were a subject
to the two and you can see the two overlapping: Kenya's Jurisdiction overlapping with the
Uganda Jurisdiction. Ugandan jurisdiction on the basis of Nationality, Kenyan Jurisdiction on
the basis of the Territorial principle.Okay}
Similarly, one state may have jurisdiction under subjective territorial principle and
another under the objective territorial or the protective principle. In these circumstances
a criminal may be tried and punished by several different states.{Lecturer's Explanation:
Remember what we said yesterday; If our Ugandan friend plans to overthrow Museveni in
Kenya and that plan is consummated in Uganda, both Kenya and Uganda have jurisdiction.

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Kenya is the territory where the plan was hatched . So does Kenya have subjective territorial
principal or does it have objective territorial principle in this case? Kenya is where the plan was
hatched the plan was consummated in Uganda. The Uganda still has jurisdiction. So we are
saying in theory you may find this one person being tried and punished by different
countries.okay}
These overlaps lead to complex issues whose resolution depends more upon the
cooperation between the states involved because International Law is silent on the point
whether conviction or acquittal in a foreign country is a bar to a subsequent prosecution
in another country.If you are arrested and tried in the UK and that offence is in the
Kenyan law, you cannot claim you cannot be convicted of the same offence. The laws of
the states involved may reach different results in a meeting prohibiting or even
requiring a certain act. In some cases the resolution depends on International
agreements that limit absolute assertion of jurisdiction.{Lecturer's Explanation:You may
have Bilateral Agreements between the states concerned as to who or which state will assert
jurisdiction in the event of an overlap or conflict}.
A case of State’scooperation in resolving these overlaps is illustrated by the example of
a foreign ship which enters port voluntarily that is, not as a consequence of distress.
{Lecturer's Explanation: So you have a ship that sails into Kilindini Harbor, not because it is
seeking refuge from the Tempest in the Indian Ocean but voluntarily it enters or sails into
Kilindini Harbor. What happens? }This is what happens: In such a case the foreign ship
owes temporary allegiance is owed to the territorial sovereign and a case of territorial
jurisdictional overlap arises because both the flag state and the local sovereign may
exercise jurisdiction in respect of conduct that breaches the respective laws. {Lecturer's
Explanation: How many of us have been into Mombasa. How many of us have stood by the
Likoni Ferry crossing and seen ships sailing in and out of the Harbour? How many of us seeing
those ships have noticed that ships sailing into the Harbour and out of the Harbour flying two
flags. One of them being a Kenyan Flag the other one being a foreign Flag? Have you noticed?
Why should a foreign state fly a Kenyan Flag when it is not a Kenyan Ship? It Flies a Kenyan
Flag to show submission to the Kenyan Jurisdiction because it is on Kenyan Territory and when
it is on Kenyan Territory it has to fly Kenyan Flag. But it also has to fly the flag of the state of
Nationality because remember as we saw ships are assimilated to the territory of the flagged

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state.So it cannot as it were abandon its Nationality and fly the Kenyan flag alone. So you see in
a situation like that there is jurisdictional overlap. This ship is on Kenyan territory so it is
subject to Kenyan law and the Kenyan forces have jurisdiction over the ship. But at the same
time this ship being assimilated to the National State whose flag it flies, is subject to the
jurisdiction of the state of Nationality. Are you getting the point? So you have now two
jurisdiction overlapping or conflicting in a situation like that. So what happens in a situation
like that ? I s it Kenya that is going to exercise jurisdiction over the ship when it is at Kilindini
Harbour or is it The state of Nationality e.g Greece whose flag it is flying.? Can somebody tell
me before I give you the answer. Is it one or Both. Is it Greece or Kenya or both for example? We
are saying the ship is in port voluntarily.
It either in port to discharge Cargo, in other words to offload or to load Cargo and move out.
That means it is voluntarily in port. If it forced by the Tempest on the High seas or Indian
Ocean to seek refuge in Kenya then we will not proceed against it. In fact we will hold it at
arm's length. We will allow it to be in port until the sea calms and then it can sail out. But here
it is in port voluntarily ...anyway ..Let's note this:) A UK ship is assimilated to the flag on
which it flies with nationality principle or jurisdiction (UK) assimilated to its territory and
enters Kenyan harbor meaning territorial jurisdiction in Kenya.
As the territorial state the local sovereign(in our case Kenya) is entitled to exercise
jurisdiction over a foreign ship in its port, and over persons and goods on board the
ship.{Lecturer's Explanation: I want you to note the words we are using;the local sovereign(in
our case Kenya) is entitled to exercise jurisdiction over a foreign ship. I in fact suggest that you
underline that word entitled. You will see why am asking you to underline that word entitled, }
In criminal matters, it is not usual for the local authorities to intervene and enforce
unless their assistance is invoked by or on behalf of the local representative of the flag
state or those in control of the ship(like the master of the ship) or a person directly
concerned or unless the peace or good order of the harbor is or is likely to be affected.
Kenya will usually defer to the flag of the state especially in criminal matters. Under the
deck or closed doors of the ship, Kenya will usually not take action unless requested to
take action…otherwise deferred to the flag state…remember SS Lotus Case.
{Lecturer's Explanation: So if there is a foreign ship in port at Kilindini Harbour in Mombasa
and a crime takes place on board the ship and the master of the ship does not request for

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assistance from the Kenyan Law enforcement authority, the local representative of the ship or
the flagged state does not request for assistance from the Kenyan Law enforcement authorities .
The Consular official of the flagged state does not request for assistance from the Kenyan Law
enforcement authorities, the Kenyan authorities will keep off and say that is a matter within the
jurisdiction of the flagged state let the flagged state deal with the matter. However if the offence
committed on board that ship affects the peace or good order of the court , then the Kenyan
authorities will intervene. Supposing , for example that whatever was happening or the offence
that was committed on board that ship causes kales in the port, and the other ships and the other
members of the crews of other ships get to know what is happening and there is a lot of
excitement in the port. The Kenyan authorities will have a right to intervene and exercise
jurisdiction over that vessel. So as to bring to an end the excitement that is likely to affect}

Accordingly in the Wildenhus case 1887 120 US( A case decided in the 19th Century but the
principles laid down there are still alive in the 21st Century).
The US Supreme Court took the view that a murder by one crew of another both
foreigners committed on board a foreign ship docked in a local port ipso facto (by that
very fact or act) disturbed the public peace on shore and therefore justified the exercise
of jurisdiction by the local authorities.Wildenhus, a Belgium national killed another
Belgium national below the deck of the Belgium vessel of which they were both crew
members which was at the time of the killing/slaying moored to the dock in Jersey
City.{Lecturer's Explanation: What is happening here is this: Wildenhus is killing a fellow crew
member below the deck. So it's not on the deck. So it is not something that can be visibly seen it
is under the Deck. It may be in one of their cabins, where they were staying as crew members. So
he kills that fellow crew member, and where is the ship?Resident ship is in port in Jersey City in
the U.S.}
The local police authorities arrested Wildenhus and charged him with the killing. The
police also held two other crew members as witnesses to the killing. The Belgium consul
applied for a writ of habeas corpus to obtain the release of Wildenhus. He relied upon
the treaty of March 9th 1880 between Belgium and the US Article IX (Article 9) of which
provided inter alia that the respective consuls general (We don't say Attorney Generals we
say Attorneys General when many E.g Githu Muigai with other A.G's of East Africa we call
them Attorneys General ) Consuls, Vice Consuls, and Consular Agents, would have

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exclusive charge of the internal order of the merchant vessels of their nation and that
the local authorities would not interfere except when the disorder that has arisen was of
such nature as to disturb the tranquility and public order on shore or in the port or
when a person of the country or not belonging to the crew would be concerned therein.
{Lecturer's Explanation: The Belgium Consul is saying look " U.S authorities release Wildenhus
because your arrest and charging of Wildenhus is in violation of this treaty between the U.S
and Belgium. You can only intervene or interfere when the disorder is of such a natureas to
disturb the tranquility and public order on shore or in the port itself or when one of your own
persons is involved. But otherwise you are not allowed to interfere because in this case both the
murderer and the murdered are Belgium Nationals. }
The circuit court refused the application (the order of habeas corpus). On appeal to the
supreme court, the habeas corpus was denied the court stating, “…with crimes which
from their gravity awaken a public interest as soon as they become known,…enquiry is
certain to be instituted at once to ascertain why and how the thing was done, and the
popular excitement rises or falls as the news spreads and the facts become known. It is
not alone the publicity of the act or the noise and clamor which attains itthat fixes the
nature of the crime, but the act itself. If that is of a character to awaken public interest
when it becomes known, it is a ‘disorder’, the nature of which is to affect the
community at large, and consequently to invoke the power of the local government
whose people have been disturbed by what was done. The very nature of such an act is
to disturb the quiet of a peaceful community, and to create, in the language of the
treaty, a ‘disorder’ which will 'disturb tranquility and public order on shore or in the
port’. The principle which governs the whole matter is this: Disorders which disturb
only the peace of the ship or those on board are to be dealt with exclusivelyby the
sovereignty of the home of the ship, but those which disturb the public peace may be
suppressed, and, if need be, the offenders punished by the proper authorities of the local
jurisdiction.”{ Lecturer's Explanation; So what the Supreme court is saying islook :when
rumours or when News spread that" Oh you know what in that ship there was a murder. A
member of the crew murdered a fellow member of the crew". That is bound to cause excitement,
and the people in the port are like" What happened..? Have you heard what happened on that
ship..? A member of the crew murdered a fellow member of the crew" and that excitement rises

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or falls at the port says as the news spreads and more and more facts come to light and according
to the U.S Supreme court that is a disturbance of the peace of the port. Because people are not
going keep quiet. People are not going to keep quiet when they know on that ship somebody was
murdered. They are going to keep talking until the ship sails away. And for as long as they keep
talking that is a disturbance of the peace in the port that is what the U.S Supreme court is
saying. And so it says in a situation like that the local authorities are entitled to exercise
jurisdiction. They cannot defer to the state of nationality of the ship.}
The court concluded by stating that it must be considered by all that felonious homicide
was a subject for local jurisdiction and that if the proper authorities were proceeding
with the case in a regular way, the consul had no right to interfere to prevent it.
While host states are fully entitled to exercise jurisdiction over foreign vessels in their
internal waters they rarely do so. Instead most states abide by what is commonly
known as the "French Modification” that is to say host states based on comity and
reciprocity decline to exercise their jurisdiction over foreign vessels unless activities
thereon threaten the peace of the port or the public peace. {Lecturer's Explanation: So if
we have a ship that has docked at Kilindini Harbour and whatever happens, happens under the
deck and it does as it were gets out of the ship for everybody else in the port to know what is
happening . We will as it were refrain from taking action and as it were defer the matter to the
flag state to take action.}. This is the modification that was adopted by the U.S Supreme
Court in its affirmation of the circuit courts judgment in the Wildenhus Case. Belgium
as the flag state had in this case secondary jurisdiction over the vessel while in an
American port.
Although the universality principle gives jurisdiction to all states in cases of aerial
hijacking, the 1963 Tokyo Convention on Offences and Certain Other Acts Committed
on Board Aircraft as well as the 1970 Hague Convention for the Suppression of
Unlawful Seizure of Aircraft give states concurrent jurisdiction to try and punish the
offenders. Although the state of registration of the aircraft is competent to exercise
jurisdiction over offences and acts committed on board the aircraft, it no longer
exercises exclusive jurisdiction.{ Lecturer's Explanation: What we are saying is that if KQ
for example flying to Entebbe or flying to Cairo is hijacked, there are several other states that
will have jurisdiction over the hijacked Aircraft. It will not just be Kenya as the state of

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 registration of the aircraft. There are other states that will have jurisdiction over the hijacked
aircraft. That is why we are saying the state of registration no longer exercises exclusive
jurisdiction}.Each contracting state is required to take such measures as may be
necessary to establish its jurisdiction as the state of registration over offences committed
on board the aircraft.
(Under Article 3 of the Tokyo Convention each contracting state is required to take such
measures as may be necessary to establish its jurisdiction as the state of registration over offences
committed on board of the aircraft). Further under the provisions of the Hague
Convention hijacking is considered as a continuing offence and any state where the
hijacked aircraft lands is entitled to exercise jurisdiction on the basis of the territoriality
principle.{ Lecturer's So you have KQ on its way to Mombasa and it is hijacked and forced to
go all the way to South Africa . Every state that KQ overflies has jurisdiction over the Hijacked
Aircraft because as we have seen Aerial Hijacking is considered as acontinuing offence and
every state through whose airspace a hijacked Aircraft passes has jurisdiction over the hijacked
Aircraft. And will be entitled to bring down the hijacked Aircraft , arrest the Hijacker and
exercise jurisdiction over the Hijacker. Regardless of the nationality of the Hijacker , regardless
of the Nationality of the hijacked Aircraft. For as long as the Aircraft has been hijacked
whichever state it passes through has jurisdiction to bring it down or take measures as may be
necessary to get custody of the hijacker and exercise jurisdiction over the Hijacker.}
However, there are some international limits to the jurisdiction of states. (On the overall, how far or to
what extent can states go? That is what we are talking about here that there are certain internation al limits). Where
two states have jurisdiction to prescribe and enforce rules of law and the rules they may prescribe
require inconsistent conduct upon the part of a person each state is required by international law to
consider in good faith moderating the exercise of its enforcement jurisdiction in the light of factors
such as:
a) The vital national interests of each of the state
b) The nature and extent of the hardship that inconsistent and enforcement actions
may impose on the person
c) The extent to which the required conduct is to take place in the territory of the other
state
d) The nationality of the person involved.

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e) The extent to which enforcement by action of either state can reasonably be expected
to achieve compliance with the rules prescribed by that state.
{All we are saying is that this calls for International Cooperation and even for states to share information. So
that there isn't inconsistent enforcement , there isn't inconsistent requirement so that when a person in state
A is required as it were to conduct himself in a different way from when he is in state B .}
The illustration of the extent to which International Law limits the exercise of state
jurisdiction is the decision of the International Court of Justice:Barcelona Traction

Light and Power Company(Belgium vs Spain) 1970 I.C.J Rep pg.3 Read this
case
{Lecturer's Brief Summary: This is a case where you have a few enterprising Belgium nationals
they crossed the North Atlantic to Canada and in Canada they incorporateBarcelona Traction
Light and Power Company. They incorporate the Company under Canadian Law. From your
company Law what does that mean? The Company is a Canadian National. True or not true?
True. So the Company is a Canadian National, because it is registered pursuant to the Canadian
Law and it has got its registered office in Canada. All the meetings of the board of directors take
place in Canada. The accounts of the company takes place in Canada, but that company is
registered in Canada with a sole aim of carrying on Business in Spain. Can you see that
Innovation?.. Genius. This Guys were geniuses... they Cross the North Atlantic to Canada and
incorporate a Company in Canada and have a registered office in Canada, but the main place of
business is where? Spain. Alright. (and I think we have seen it happen there are some people
who come from out there and they come in Kenya and get some persons in Kenya as Nominal
Shareholders and they register a company at Sheria House, and say this is a Kenyan owned
Company..when all the decision making and all policies of the Company take place outside Kenya
but you know the persons made nominal shareholders are there as nominal shareholders who are
Kenyan citizens and the Company is registered in Kenya and it has its registered office in
Nairobi or wherever. But where is it doing business? It is doing business in South Africa.) So
the same happens here: The company is incorporated in Canada under Canadian Law to carry
out business in Spain. While the Company is carrying out the business in Spain what happens is
the Spanish authorities issue orders to liquidate the company. And when they do that Belgium
says look" The majority shareholders if not all the shareholders of that company are Belgium
Nationals so for that reason the Company is Belgium. And because the majority of shareholders

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are Belgium's we are going to take up the matter on their behalf, and claim compensation from
the Spanish Govt.
Remember it is not the individual shareholders who are injured by the Action of the Spanish
Authorities , it is the Company as a legal entity separate and distinct from the shareholders.
Because when the Company is put under receivership it is not shareholders who are under
receivership it is the Company as a legal person entity that is put under receivership. So
Belgium applies to the I.C.J and says what Spain has done is injurious to the interests of our
Nationals and we are claiming compensation. Then Spain comes up and says" Hey hey hey..
I.C.J Belgium has no Locus Standi. Belgium has no Locus Standi because the purported link
that would bring Belgium before you is not there. It is not Belgium Nationals as shareholders
who are injured it is the Company and the Company was incorporated in Canada. And therefore
it is only Canada that can extend the right of diplomatic protection of the company as a
Canadian National . So Belgium keep off . I.C.J you have no Jurisdiction tell Belgium to pack up
and go home . And guess what? The I.C.J says yes.."Belgium you have no Locus standi.The
injury was caused to the Company as a Canadian National. It is only Canada that has
the Locus Standi to espouse the claim on behalf of the Company which is a Canadian
National.Okay
The company had been incorporated in Canada in 1911 to develop and operate and
electric power system in Spain. In 1948 it was declared bankrupt by a Spanish court and
its assets were ceased. At the time 88% of the shares in the company were owned by
Belgian nationals and so the Belgium government wrote this action against Spain in
respect of the injury to its nationals who are shareholders resulting from the injury to
the company or the allegation that the company was really a Belgium company. The
Spanish government raised four objections among them that the Belgium claim was
inadmissible because the Belgium government lacked any dues standing to intervene or
jurisdiction to exercise diplomatic protection on behalf of its nationals who are share
holders in a Canadian rather than Belgian company.
The court noted that decisive for the issue of the Belgium government jurisdiction to
invoke diplomatic protection was the existent or absence of a right belonging to
Belgium and recognized as such by IL.

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 While the court recognized that there are possible exceptions to the general principle in
IL that Diplomatic protection of a company can only be given by that companies
national state it found that such exception was not present in the case where the
secession of protection by the companies national states was not the result of any legal
impingement. The court declines to lift the corporate veil to determine the existence of a
link between the state and the corporation on the basis of control noting that the
company had maintained its offices shares accounts board meetings and tax receipts in
Canada for about 50 years and had disclosed from the outset of its incorporation that its
activities were geared through business outside of Canada. Accordingly the court
rejected Belgium claim upon the ground that Belgium had no locus standii to espouse
before the court claims of alleged Belgium nationals who are share holders in the
company in as much as the company was incorporated in Canada and was in an
international legal sense of Canadian nationality.
The reasoning relied on by the court may be explained as follows: the jurisdiction of a
state to invoke diplomatic protections or corporations abroad is based on nationality.
The individuals or corporations that the state seeks to protect must be its nationals.
It is only the bond of nationality that entitles the state to exercise diplomatic protection
and seek redress under IL for a wrong done to its national abroad.
In the case of a company the basic test is where the entity is incorporated and has its
registered office. IL recognizes the general principle of municipal law that an
infringement of the rights of a company does not involve liability towards the share
holder even if their interests are detrimentally affected by the infringement. The
company is a distinct and separated legal person from the share holders and the court
will not look behind the corporate veil.
A different principle might apply if the wrong were aimed at the direct right of the
shareholders as such.
However the present case was not concerned to the infringement of the shareholders
direct rights but with the alleged illegal measures taken by Spain against the company.

 Also a related case to the one above in regard to: The extent to which International
Law limits the exercise of state jurisdiction is the:

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NOTTEBOHM CASE(MERITS) (1995) I.C.J Rep 4
Lecturer's Explanation:
This also was a very interesting case. It was a case of Dual Nationality. Nottebohm was born
initially as a German, he moved lichslasine * and then from there on he went to Guatemala and
Central America and so on and so forth. And the question was which state had the right to claim
on his behalf? And the I.C.J SAYS "with which state does he have a genuine link.? Yes he might
have been born in Kenya but he left Kenya and went to Zimbabwe and got Zimbabwe
citizenship because Zimbabwe law allowed dual citizenship and when he was there what did he
do that is where he set up his business , that is where he married, that is where he raised his
family, that is where he did work, that is where he votes during the election and he is even
campaigning for Mugabe . So to all intents and purposes he is a Zimbabwe National because he
has a genuine link with Zimbabwe rather than with Kenya. So Kenya cannot claim to espouse
his rights or her rights at International Law. Okay .So we look for Genuine Link. The question is
what country does this individual have a genuine link ? Am sure you have brothers or relatives
who are in the U.S. They have received a green card and they are in the U.S and once in a while
they come back to Kenya. So the question will arise with what country does he have a genuine
link? Is it with Kenya where he visits every four years or is it in the U.S where she resides works
,pays her taxes, exercises her civil rights, she is going to vote for Hillary Clinton as the
Presidential Candidate in The Democratic Party and so on and so forth .. those are some of the
considerations that are taken into account so as to avoid this conflict of jurisdiction.}

EXTRADITION
This refers to the surrender of an individual accused or convicted of a crime by the state within whose
territory he is found (the asylum state) to the forum state (requisitioning state).
There is no right to extradition apart from treaty under international law – there must
be an extradition treaty. There is no requirement to extradite someone except under a
treaty - similarly there is no duty to surrender an alleged fugitive to the requisitioning
state( forum state)save under treaty.
The treaty may be bilateral or multi- lateral. Most bilateral treaties contain a list of
offences for which a fugitive may be extradited.Multi lateraltreaties, on the other hand,
stipulate that the act for which extradition is sought must be a crime under both

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jurisdictions punishable by a certain minimum penalty.(In other words it must be a crime
in the requisitioning state as well as the asylum state where the criminal is).
Indeed most multi lateral treaties codify “the double criminality rule” of customary
International Law. This rule provides that extradition is only granted in respect of an
act which is a crime according to the law of the asylum state as well as the law of the
requisitioningstate.{How many have been following the case of Gichuru and Okemo to be
extradited to UK to face charges on crime of money-laundering? In Kenya, this was not an
offence then}.Besides the courts of the asylum state do not have to determine whether the
defendant committed a crime for which extradition is sought.They merely review the
evidence to determine if a prima facie case exists for which the defendant must answer
at a trial in the requisitioning state.
A related principle is that of SPECIALTY that is:a person that surrendered may be tried and
punished only for the offence for which extradition had been sought and granted.{Lecturer's
Explanation: If the U.K is seeking for Okemo and Gichuru to be tried for the offence of money
laundering if they are extradited and it is a big if , if they are extradited . The U.K authority
cannot turn around and say we are trying them for example, say for theft. Or we are trying
them for this or that other offence, it must be money laundering and nothing else according to
the principle of Specialty.}

Extradition shall not take place if the prosecution of the fugitive is barred by a statute
of limitation in either the asylum state orrequisitioning stateor where the fugitive
isaccused of political offences that is offences committed in furtherance of a political
movement or in the course of a struggle to control the government of a state.
{Lecturer's Explanation:you now there are certain laws that say that if a person commits an
offence….that person must be tried within a certain period of time. so if that period of time has
elapsed then in the first place extradition will not even be granted.}
Most extradition treaties also exempt nationals of the asylum state from extradition on
basis that individuals should not be withdrawn from the jurisdiction of their own
courts. Such persons must be prosecuted by the states of which they are nationals.
{Lecturer's Explanation Example: Libyan National accused of Lockerbie bombing and Libya said
they could not extradite their own national to stand trial either in U.S or in the U.K. . If they
had evidence that their national was the one responsible for the bombing of Panam over

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Lockerbie in Scotland in the U.K bring that evidence we will try him in our own courts.} He said
he will hand them over on condition they are tried not in UK and US and they were tried in the
Netherlands.

Case – SOERING vs UK (1989) 98 ILR 270 – ILM (International Legal Material) 1063
In that case the UK International Human rights (IHR) held the extradition of a person of
a state where he is wanted for a crime for which he could be prosecuted to death or
where he would be likely tis likely to spend a lengthy period on death row be a
violation of Article VII of the 1966 International Covenant of Civil and Political Rights
which prohibits torture or cruel or degrading treatment
Question
Difference between deportation and extradition. You see: When you deport somebody you are
telling him we do not want you in our territory, you are so bad we are taking you back to your
country. And that is it and put him on the next fright going back to his home. You do not want
to subject him to your local jurisdiction. Example : Chinedu.

STATE IMMUNITY/ STATE SOVEREIGN IMMUNITY

Introduction
Americans call it Sovereign Immunity.
Immunity is an exception to the principle of jurisdiction. It only applies to the
jurisdiction of states where the person appearing is a sovereign of the state. It does not
apply in I Courts or in the state in which the person is a national. You cannot sue in
another state. You cannot an equal in your court as states are considered equals and
revolves around the equality of states. Immunity does not apply in the I courts but
applies in the municipal courts. A state has jurisdiction over all persons within its
territory and over all acts that take place within its territory. This right is absolute under
IL. However, there are certain circumstances under which a state will not exercise its

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territorial jurisdiction – two of these are recognized under IL; Immunity where a person
under the territory enjoys immunity; 2. Subject matter is non-justicial (justiciability).
There is a difference between the principle of immunity and the principle of non-
justiciability. Immunity is invoked because of the status of the defendant before the
court – if you want to sue Uhuru, the court will not have status. Non-justiciability is
invoked because the subject matter of the case is outside the jurisdiction of the courts.
Under IL we have two types of immunities;
1. Sovereign immunity
2. Diplomatic and consular immunity.
Sovereign / State Immunity
Immunity that is enjoyed by the state as an abstract entity and two, by high ranking
officials of the state as representatives of the state. Historically, this immunity used to
be absolute as long as parties to the dispute are high ranking, before 1800. However,
there was a shift to restrictive immunity only covering public acts (Acta ure imperii)
and not on commercial acts (Acta jure gestionis) or private acts. States enjoy as an
abstract entity enjoy imperii. The difficulty is in differentiating the two.
What is a public act and what is a commercial act?
Read the Aero Trade Vs Republic of Haiti – the US court granted immunity in respect of
a claim for the payment of military equipment supplied to Haiti for use by its armed
forces and for services rendered in connection to the supply of such equipment.
Remember immunity only applies in the court of the foreign country.
Read Case of Prentice Shaw vs the Government of the Republic of Bolivia – the south
African Court classified a contract for the erection of an embassy as an act jure imperii –
Bolivia government failed to pay the contractor and south Africa said it had no
jurisdiction. Compare this with Planmount Limited vs the Republic of Zaire where the
English Court held that the repair to the Ambassador’s residence was a commercial
transaction that did not enjoy state immunity.
In 2004 the IAC enacted the UN Convention on Diplomatic Immunity on the immunity
of States that states as follows;
States only enjoy immunity for public acts and not commercial acts
The convention defines commercial acts as;

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- 1. Any commercial contract for the supply of goods or the supply of services
- 2. Any contract for a loan or other transaction of a financial nature.
- 3. Any other contract or transaction of a commercial, industrial, trading or
professional nature but not including a contract of employment of persons.
The convention goes further that in determining whether a c=tracsna reference fhould
be primarily to the nature of the transaction. The primatry criteria is the ature of
transcation. The piurpose of the transact should only be considered if the partied to the
contract ghave so agreed.

Officials of state enjoy Functional (because of function and can be sued after leaving
office) Immunity and Personal (by virtue of position occupied) Imunity which are
sovereign immunities. All officials of the state enjoy functional immunity. Only Head of
Government and Head of Foreign Affairs enjoy Personal Immunity.
Functional immunity is enjoyed by all officials of the state functioning for the state
whilst personal immunity is on the basis of office and is on the big three during
subsistence of office – Head of State, Head of Government and Minister of Foreign
Affairs.
The ICJ has held in the Arrest Warrant Case between DRC and Belgium that sovereign
immunity, rationae personae, has listed the Head of State, Head of Government and
Minister of Foreign Affairs as the one s who enjoy of this immunity.

- Read Pinochet Case

- Read Germany Vs Italy Case – Jus Cogens principle vs immunity principle.
- Sovereign Immunity of Officials - Jones vs Ministry of Interior of the Kingdom of
Saudi Arabia
- Al-adsani Vs United Kingdom

DIPLOMATIC IMMUNITY
As all states have an interest in the exchange of diplomats, the rules of diplomatic
protection are well settled and strictly observed. Political relations between states are

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conducted by diplomatic missions comprising of ambassadors and diplomats while
trade relations are managed by consular officials.
As the functions of diplomats and consulars differ, so is the level of immunity of the
two officials. Immunity of diplomats is guided by the Vienna Convention of Diplomatic
Relations of 1961 and the immunity of Consulars by the Vienna Convention of Consular
Relations 1963 guides the consular immunities.

Immunity of Diplomats
There is no right (or duty) in IL of a state to enter into diplomatic relations of another
state. Although the sending state selects its ambassadors, the receding state has a right
to declare any diplomat to be unacceptable ie. persona non grata. The head of a
diplomatic mission assumes its duties only after the sending the credentials to the
receiving head of state. The head of a consular mission takes effect after presenting
papers to the head of foreign affairs in the receiving state.

Functions of Diplomats
 Represent the sending state
 Protect interests
 Negotiate government
 Promote friendly relations
A diplomatic mission is provided with immunity in order to be able to perform its
functions.The following immunities are applicable to diplomatic missions;
 The premises of the mission, their furnishings and property are immune from
search , requisition, attachment or execution - Article 22 of convention
 The means of transport of the mission is also inviolable
 The official correspondents of a mission are also inviolable
 The diplomatic bag that is used to transport documents or articles of the mission
are also inviolable- Article 37. The bag may not be opened or detained by the It
receiving state. See case of Nigeria and UK
It has been suggested that the receiving state has the right to enter missions possibly
and to enter mission bags in the right to self-defence. State practice support this - in

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1973, Pakistan raided the Iraqi embassy and discovered a catchment of arms that was to
be used to overthrow the government. This is using the defence of self-defence as it is
accepted in state practice using the elements in IL.
The person of a diplomatic agent is inviolable and cannot be arrested or detained –
article 29. The private residence of a diplomat is also inviolable – article 30. The
diplomat agent enjoys absolute immunity from criminal jurisdiction of the receiving
state and also enjoys immunity from civil jurisdiction except in the following cases;
1. A real case – actions involving real property e.g. land
2. Actions relating to succession
3. Actions relating to any professional or commercial activity exercised by the
diplomat outside his diplomatic function
Members of the family of the diplomat enjoy the same immunity as the diplomat –
article 37 (1), if they are not nationals of the receiving state. The administrative and
technical staff of the mission only enjoys immunity in respect to acts performed within
their duties. A Kenyan working in UK embassy does not enjoy diplomatic immunity
except may be on tax waivers.Diplomatic immunity only applies in the receiving state.
Transit states he may enjoy but not outside on private function say holiday. Read
Article 40.

CONSULAR
They are not responsible for diplomatic relations hence they enjoy a lower degree of
immunity. Article 31 – Consular premises are inviolable.Consular archivesand bags are
inviolable. The consular himself is only immune to crimes that are not grave.

Under Classical International Law foreign states and foreign diplomatic agents have
been the classical exceptions to the exercise of jurisdiction by states on basis of the
territoriality principle. A state can’t exercise its jurisdiction to apply its laws to these
entities. In International Law State immunity refers to the legal rules and principles
determining the conditions under which a foreign state may claim freedom from the
jurisdiction of another state.
In practice, problems of state immunity arise at two different levels:

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i) Concerns the Immunity of a foreign state from jurisdiction of municipal courts of
another state to adjudicate a claim against arising from e.g. a contract or tort
ii) Concerns the exemption of a foreign state from enforcement measures against its
property especially to execute a municipal court decision.
Lecture's Explanation: What we are saying here is that the law of state immunity, as it
were bars or prohibits the municipal courts of one state adjudicating over matters in
which a foreign state is involved. For Example if there is Uganda will be entitled to come
to the High court and say look: The high court of Kenya You have no adjudicative
jurisdiction over us. as a sovereign state. We enjoy immunity from your jurisdiction.
That immunity is immunity from jurisdiction not liability. So when the Govt. of Uganda
comes up and raises state immunity, as a bar and says Kenya authorities you have no
adjudicative jurisdiction, you have no enforcement jurisdiction, That does not mean that
is the end of the matter. All the Ugandan authorities are saying is look we enjoy
immunity from the jurisdiction. They are not saying they enjoy immunity from liability
they are liable. Whether it is in contracts ,in torts they are liable.}
The principle of state immunity is one of the principles IL. This has the consequence
that should a state fail to apply it in an appropriate case, it will be responsible under
international law.
However, the actual circumstances in which the immunity is to be granted are usually
settled by the Municipal Law of each state.
States and their governments are granted immunity from the territorial jurisdiction of
other states on the basis of policy considerations
The Law of state immunity relates to the grant in conformity with International Law of
immunities to states to enable them to carry out their public functions effectively and to
the representative of states to secure the orderly conduct of International relations.(It on
the basis of functionality principle that state immunity is granted.)
Immunity is a plea relating to the adjudicative and enforcement jurisdiction of national
courts which bars the Municipal Courts of one state from adjudicating disputes of
another state.

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 When disputes arise a state agency may prevent the adjudication in another states court
by pleading State Immunity. State immunity serves three main functions. These three
functions are:
1. As a method to ensure a 'standoff' between states where private parties seek to enlist
the assistance of the court of one state to determine their claims made against another
state.{Lecture Explanation: What we are talking about here is where a Kenyan citizen takes the
Govt. of Uganda to the High court of Kenya whatever the nature of claim he has, and as a
private individual the Govt. of Uganda comes up and says" Look, we are entitled to immunity
from the local courts. So that then bars the person from getting assistance of thecourt of Kenya
against Uganda.}
2. As a method of distinguishing between matters relating topublic administration of a
state and private law claims.{ We are going to see that it is not at all instances that the Govt.
of Uganda will come up and say" High court of Kenya you have no jurisdiction over us as
foreign state. This is because International law makes a distinction between what are called
public acts of a sovereign state and private acts or commercial acts of a sovereign state. In the
event of Public acts of a sovereign state there is full state immunity but in event of private
commercial acts there is no immunity. We are going to see that if ,You are a civil Engineer and
you signs a contract with Uganda to build the High commissioner residence in Nairobi and the
Govt. of Uganda cannot claim state immunity when it has failed to discharge its obligation
under the contract. Because that will be a private matter not a matter of public administration.
Entering into contracts buying and selling by foreign states is not public administration matter}
3. As a method of allocating jurisdiction between states relating to the prosecution of
crimes and the settlement of claims by private litigants, relating to state activities in the
absence of any International agreement by which to resolve conflicting claims to the
exercise of such jurisdiction.
THE BASIS /RATIONALE OF GRANTING STATE IMMUNITY IS TWO FOLD:
 The 1st reason is found in the doctrine of sovereign equality expressed Par in parem
non habet imperiumi.e. equals have no jurisdiction over one another concerned with the
status of legal equality attached to independent sovereign ( If one state was to be subjected
to the municipal law of one state it would bring about inequality which is against the principle
of state equality).States being independent legal persons of equal standing can't have

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 their disputes settled in the courts of one of them.This can only be done with the
consent of the sovereign state through waiving its immunity. In this case the consent
given upholds the state of equality.
 The 2nd reason is that it would as a corollary offend the dignity of a sovereign state, to
submit to the jurisdiction of another by having its acts performed in its sovereign
capacity subjected to the laws of another state. This is notwithstanding the fact that such
an act by a foreign sovereign state was a breach of the Municipal Law of the forum
state.
N/B- State immunity is a procedural rule that goes to the jurisdiction of a national
court it doesn't go to the substantive law.
Explanation: when we say that state immunity is a procedural rule going to the jurisdiction
what we are saying is this: You see the Kenyan courts will have what we call jurisdiction
ratione materiae. Alright.. The Kenyan courts will have subject matter jurisdiction that is
what it means. The Kenyan courts have authorities to interpret ,adjudicate, and enforce claims
arising out of all laws enacted by parliament.
So you have a foreign state that violates the Kenyan Law. Kenya courts have got jurisdiction
Ratione Materiae over that foreign state. But what is happening is this : That because one of
the parties to the case is a foreign state, that foreign state is telling the Kenyans courts you lack
jurisdiction Ratione personae. Meaning you do not have jurisdiction over one of the person
before you. It continues to add you do not have jurisdiction over the defendant ,the defendant is a
sovereign state.That is why we are saying thatState immunity is a procedural rule that goes
to the jurisdiction of a national court it doesn't go to the substantive law. The
substantive law is on Ratione Materiae, that the law has been violated by a foreign state, the
foreign state is liable for violating the law but the foreign state is saying " Look you do not have
jurisdiction Ratione Personae, because we are a sovereign state enjoying immunity and
we cannot be subjected to Kenyan Law because we are Kenya's Equal.Kenya Court's
have authority to adjudicate on all matters under Kenyan Law. So they have subject matter
jurisdiction. Subject matter being the Kenyan Law. The subject matter in question is the Kenyan
Law so the High court so the High court has jurisdiction right from the point go. In other words
we are talking of a case where the rule of Non-justiciability does not apply. Non-justiciability
is where the court right from the beginning it has no subject matter jurisdiction. But in this case

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the court has subject matter jurisdiction. What is in issue is the interpretation of the Kenyan
Law. A foreign state has violated the Kenyan Law by not for example not honouring the terms of
a contract with a citizen. It has violated the law of Contracts. So the Kenyan Courts have
jurisdiction over the subject matter but the Kenyan Courts lacks jurisdiction Ratione Personae
or jurisdiction over one of the party before it and in particular the defendant because it is
Sovereign foreign state enjoying immunity from the Kenyan Courts.}

EVOLUTION OF THE DOCTRINE OF STATE IMMUNITY

Originally under customary International Law the doctrine of absolute state immunity
applied until the end of the 19th century covering all areas of state activities and
recognizing very narrow exceptions.
For a long time most of the common law countries upheld the rule of absolute state
immunity which enable foreign states to enjoy immunity in respect of all their activities
including commercial ones the doctrine of absolute state immunity was endorsed and
explained by the Chief Justice Marshal in The Scooner Exchange vs Mc Faddon where
the court found that the French vessel in question subject of the dispute was exempt
from the US jurisdiction. Two US District Courts of Pennsylvania claiming they were
entitled to possession of the vessel. They alleged that the vessel had been seized in 1810
on the high seas by persons acting on behalf of Napoleon as emperor of France and that
without any French Prize Court Adjudication the vessel had now been brought to
Philadelphia court. No appearance was made but the US Attorney appeared at the
instance of the US government and filed a suggestion setting forth that the vessel was a
public vessel of France which had into court in Distress and asking that the Libel be
dismissed. The district court dismissed the libel, the circuit court reversed allowing the
libel, and the US attorney appealed to the Supreme Court. But the Supreme Court in
reversing the judgment of the circuit and affirming the judgment of the district court
stated. “The jurisdiction of the nation within its territory is necessary exclusive and absolute. It
is susceptible of no limitation not imposed by itself…this full and absolute territorial jurisdiction
being aligned to the attribute of every sovereign, and being incapable of conferring extra
territorial power, would not seem to contemplate foreign sovereigns nor their sovereign rights as
its objects. One sovereign being in no respect amenable to another, and being bound by

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obligations of the highest character not to degrade dignity of his nation, by placing himself or its
sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory
only under an expressed license or in the confidence that the immunities belonging to his
independent sovereign station, though not expressly stipulated, are reserved by implication, and
will be extended to him….This perfect equality and absolute independence of sovereign and these
common interests inhaling them to mutual intercourse and an interchange of good offices with
each other, have given rise to a class of cases in which every sovereign is understood to waive the
exercise of a part of that complete exclusive territorial jurisdiction which has been stated to be the
attribute of every nation.”
Accordingly the Supreme Court held that the Schooner exchange was exempt from the
jurisdiction of the US stating that subjecting her to the laws of US would affect the
power and dignity of the French sovereign.
The need for and rationale of absolute immunity began to be questioned towards the
end of the 19th century when states began to engage in trade and other commercial
functions not wholly reserved for state.
Why if two identical contracts were made one with a private person and another with
his government the former could be sued on his contract and the later (the government)
would not?
The problems became more acute with the widespread contracting for trade by in
especially the communist state and their trading organizations which concluded
commercial dealings with foreign individuals and companies.
These foreign individuals and companies have no remedies under the international law
if disputes arose because a foreign state or its organization could rely on the concept of
sovereign immunity and claim immunity from the judicial process of the local courts.
Absolute immunity seemed inappropriate, non realistic phenomenon in the lights of the
requirements of the contemporary commercial world and notion of stability fairness
and equity of the market place.
The need to separate state actions from actions that a private person would perform
became apparent. Absolute immunity had been based on status. It was enough for a
potential defendant to show that it was a state or a state organization and that it was
being impleaded directly or indirectly for it to be accorded immunity.

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From the 1950s onwards several states began to move towards the restrictive or
qualified doctrine of state immunity following the early examples of Italy and Belgium
which had adopted restrictive state immunity doctrine since the turn of the century.
For instance under the auspices of the Council of Europe, European states confirmed
these restrictive approach to the concept of state immunity in 1972 by adopting the
European Convention on the state Immunity. The states indicated that they would no
longer emphasize the status of the defendant but rather the nature of the activity or
transaction in which it had been engaged.
Jane- private individual – no immunity
KQ- Private Corporation- accorded immunity
A distinction was to be made between Acta jure imperii i.e. acts in public authority in
respect of which there would still be impunity and Acta jure gestionis i.e. commercial
or private acts in respect of which no immunity would lie.
Status remained important only to put a defendant within the category of persons who
potentially could claim immunity. The actual entitlement so to claim would now
depend upon the activity or transaction in question. By the 1970s several countries had
adopted the restrictive approach of state immunity through both legislative and judicial
actions.
For instance the U.S Congress did in1976 that the congress enacted a Foreign Sovereign
Immunity Act.
i. Section 1603 (d) of the FSIA provides that the character of an activity shall be
determined in its nature rather than by reference to its purpose.
ii. Sec 1605 FSIA provides that a Foreign state shall not be immune from the jurisdiction
of the court of US in any case in which the action is based on a commercial activity
carried on in US by the foreign state or upon an act performed in the US in connection
with a commercial activity in the foreign state elsewhere or upon an act outside the
territory of the US in connection with a commercial activity of the foreign state
elsewhere and that act causes a direct effect in the US.
For instance in the case of Alfred Dunhill of London Inc. v Republic of Cuba the US
Supreme Court applied the restrictive theory of sovereign immunity as the basis for

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refusal to recognize the repudiation of commercial obligations of a state instrumentality
as a state transaction.
Immunity was to be granted to the respect to causes of action arising out of foreign
states public or governmental actions and not with respect to those arising out of its
commercial or proprietary action because in the later capacities the foreign states
exercise only those powers that can also be exercised by private individuals.
Facts
In 1960 the Cuban Government confiscated businesses and assets of five leading
manufacturers of Havana Cigars. These companies were organized under Cuban Law
and were owned by Cuban Nationals. The companies sold large quantities of cigars to
foreign customers in several countries including the US where the three principle
importers were the petitioner Albert Dunhill, Saus & Co, and Faber Co & Gregg Inc.
The Cuban Government named Interventors to take possession and operate business of
the seized Cuban concerns. The Interventors continued to ship cigars to foreign
customers including those to the US. The former business owners most of whom had
fled to the US brought various actions against the three American Importers for trade
mark infringement and for the purchased price of any cigars that have been shipped to
importers from the ceased Cuban plants and that US trademarks claimed by the foreign
owners to be their property.
The Cuban interventors and the Republic of Cuba were allowed to intervene in these
actions. Both the former owners and the interventors claimed some $700,000 allegedly
due from the three importers for post intervention shipment.
As per the date of intervention the three importers owed a total of $477,600 for cigars
shipped prior to intervention. The sum had however been paid to the interventors
subsequent to intervention on the assumption that the interventors were entitled to
collect accounts receivable on the intervened business.
Accounts however later showed that the petitioner had paid $148,600 on account of the
pre intervention payments made under error. The petitioner therefore sought to set off
the sum it owed for post intervention shipment against what was due and recoverable
from the interventors.

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The issue before the court was whether failure of the respondents to return to the
petitioner balance of the sum due was an act of the government of Cuba precluding an
affirmative judgment against the respondent, the court held that it was not a public act
in the state of Cuba but rather a commercial act of which there was no entitlement to the
state immunity.
Although the US abandoned the absolute immunity rule and adopted the qualified
immunity rule in1952 it was not until 1976 that the congress enacted a Foreign
Sovereign Immunity Act.
Section 1603 (d) of the SIV provides that the character of an activity shall be determined
in its nature rather than by reference to its purpose.
Sec 1605FSIV provides that a Foreign state shall not be immune from the jurisdiction of
the court of US in any case in which the action is based on a commercial activity carried
on in US by the foreign state or upon an act performed in the US in connection with a
commercial activity in the foreign state elsewhere or upon an act outside the territory of
the US in connection with a commercial activity of the foreign state elsewhere and that
act causes a direct effect in the US.
In 1976, the UK enacted the State Immunity Act to implement the provisions of the 1972
European Convention on the State Immunity. The act adopted the restrictive approach
to state immunity.
Section 1 (1) of the act provides that a foreign state is immune from the jurisdiction of
the court of the UK in respect of specific circumstances provided for under the act.
Section 3 (1) then provides that a foreign state is not immune as respect proceedings
relating to
a) A commercial transaction entered into by the state or
b) An obligation of the state which by virtue of a contract (whether a commercial
transaction or not) falls to be performed wholly or partly in the UK.
Section 3 (3) defines “commercial transaction” as follows namely
a) Any contract for the supply of goods or services
b) Any loan or other transaction for the provision of finance and any guarantee or
indemnity in respect of any such transaction or of any other financial obligation

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c) Any other transaction or activity (whether of commercial, industrial, financial,
professional or other similar character) into which a state enters or in which it
engages otherwise than in the exercise of sovereign authority.
THE CURRENT POSITION REGARDING STATE IMMUNITY
Whereas there is a growing trend in state practice to extend restrictive immunity to
foreign states the key problem is how one distinguishes from an actus jure imperii from
an actus jure gestionis.
It is not always self evident into which category any specific transaction in which a state
is involved falls. A contract for sale and purchase is generally regarded as a commercial
transaction an actus jure gestionis.
What about if it is a contract for the sale and purchase of military hardware? Is it an
exercise of sovereign authority a transaction in which a private individual cannot be
involved. It used to be thought that assistance would be derived in this task by looking
at the purpose for which a contract was being entered into.
Accordingly in the above example the answer would be given by noting that the object
of the contract was a high state matter, a matter of sovereign authority. However, there
has come to be a general rejection of reliance on the purpose as being incompatible to
the requirement with focus on the nature of the transaction.
For instance, in The Trendtex Trading Corporation ltd, v the Central Bank of Nigeria,
LD Denning MR said that the purpose of a contract is irrelevant to its destination as
attracting absolute or qualified immunity.
In 1975 the CBK of Nigeria issued a letter of credit in favour of the plaintiffs, a Swiss Co.
for the price of cement to be sold by the plaintiffs to an English Co. which had secured a
contract with the Nigerian Government to supply cement for the construction of an
army barracks at Abuja. When under instruction from the Nigerian Government, the
bank refused to honor the letter of credit and to pay for charges incurred by delay at the
port of delivery, the plaintiffs brought an action in personam against the bank in the
English HC. The bank successfully claimed state immunity. The plaintiffs appealed to
the CA. It stated, “In concurrent with the other two judges in the application of the
doctrine of restrictive immunity and so allowing the appeal, LD Denning said, “If the
government department goes into different market places of the world and buys goods of cement,

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as a commercial transaction, the government department should be subject to all the rules of the
market place. The seller is not concerned with the purpose in which the purchase intends to put
the goods.”
In the premises, in determining the distinction between actus jure imperii and actus
jure gestionis one should refer to the nature of the state transaction of the resulting legal
relationships and not to the motive or purposes of the activity of the transaction. In
order to with draw its action from the sphere of actus jure gestionis, a state must be able
to point to some act clearly done within its sovereign authority as an actus jure imperii.
Given the difficulty of making the distinction between the actus jure imperii and actus
jure gestionis there is a recent trend in state practice to turn towards the taste of
whether an act is one may be performed by any private person or only by a sovereign.
The subject of state immunity has also been addressed by the United Nations
In 2004 the U.N adopted the Convention on jurisdictional immunityof states and their
properties which applies to the immunity of states and its property from the
jurisdiction of the courts of another state.
Article 5- A state enjoys immunity in respect of itself and its property from the
jurisdiction of the courts of another state.
However under Article 10 if a state engages in a commercial transaction with a foreign
natural persons and by virtue of the applicable rules of private International Law
differences relating to commercial transactions fall within the jurisdiction of another
state , the state cannot invoke immunity from the jurisdiction arising out of that
transaction.
The provision doesn't apply to commercial transaction between states or if the parties to
the commercial transaction have expressly agreed otherwise.
Further a state enterprise or other entities established by a state which has an
independent legal personality and is capable of suing and being sued or owning or
disposing off property including property which it has been authorized by the state to
operate or manage shall not be entitled to immunity if it is involved in a proceeding
involving a commercial transaction.

ACT OF STATE DOCTRINE

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Distinction between acts of states and states immunity (exam)
Closely related in the practice of some states with the principles of state immunity is the
act of state doctrine. Under this doctrine, a state’s legislative, judicial or executive act
having force of law within that states territory are not subject to judicial enquiry by the
courts of another state. In other words the act cannot be challenged in the courts of
other states even if they are contrary to IL.
UG is a sovereign state under prescriptive jurisdiction, adjudicative jurisdiction,
enforcement of executive jurisdiction. When in ex of its prescriptive jurisdiction and
enacts a legislation and no foreign court can intervene with that act of parliament. One
can only intervene if a foreign state suffers injury at the expense of implementing that
law. Kenya cannot intervene at any point. The president of UG has all the authority to
ensure UG enforces its law. Kenya can practice the right of diplomatic protection over
her citizens of take the matter to the ICJ. If one is aggrieved one should pursue the
remedies available up to the Supreme Court in UG. One cannot take laws of one
country and have them reviewed with another country. These are laws pursuant within
that state only.The civil procedure act on section 9 was contrary to PIL before
amendment as Kenya cannot review other state laws.Agreements whether with
individuals/ IC bind the states & not the govt as the states is legal persons & not the
governments.
The essence of a plea of acts of state doctrine is that an issue is non- justiciable i.e. the
Municipal court has no competence to assert jurisdiction at all.
The point here is that the substantive issue is of such a nature that it cannot be the
subject of judicial proceedings before the national court. The act of state doctrine is a bar
to the assumptions of jurisdiction because of the subject matter of the litigation.
The rule is founded against the principle of state sovereignty and non interference in
internal affairs of other states and the presumption being a state is better able to
determine the validity of its own acts vis- a vis its own laws other than the courts of
another states.In American courts the doctrine is viewed more as a matter of
constitutional law rather than of IL with courts generally exercising judicial restrain vis-
a vis the executive in the matters of foreign policy.

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The doctrine was first enunciated in the case of Underhill v Hernandez where the US
Supreme Court refused to award damages to an American citizen for his detention by
the Venezuelan armed forces on the ground that the court of one country could not sit
in judgment on the act of the government of another done within its own territory.
Every sovereign state was bound to respect the independence of every other sovereign
state. Instead of looking to the limits of the jurisdiction of national courts as does the
state of immunity doctrine, the act of state doctrine is fundamentally concerned with
the prescriptive jurisdiction of foreign states.
Instead of operating as a jurisdictional principle it functions rather like a choice of law
rule, the result is a courts acceptance of the legitimacy of the foreign states territorial
prescriptions and tested either by international or domestic standards.
State immunity on the other hand is where a national court would have had jurisdiction
over the subject matter of the dispute but is not permitted to exercise it in a particular
case because one of the parties to the dispute is a foreign state or government
department.
State immunity is based in the 1st instance on the identity or statusof the litigant that is
it is an issue ratione personae whereas Act of state and hence non justiciability is based
on thesubstance of the disputes that is, it is an issue ratione materiae.
The act of state doctrine may be derived upon by private as well as public litigants. The
doctrine rests upon considerations of International Comity and expedience as well.
"To permit the validity of public acts of one sovereign state to be re examined and
perhaps condemned by the court of another state would very certainly imperil the
amicable relations between governments and vex (irritate/annoy) the peace of
nations."Despite their doctrinal differences the act of state doctrine and the rules of
state immunity are functionally similar in so far as both differ to foreign sovereigns and
compel claimants to appeal to foreign courts or to submit to diplomacy to protect their
interests.
However, there is no immunity from International responsibility where these exists
under general or treaty under IL.In other words no plea of state immunity or acts of
states can be made or entertained before an international tribunal.

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 DIPLOMATIC & CONSULAR IMMUNITY
Introduction
International relations of states are conducted by state officials or agents through the
institution of diplomatic envoys. Today the institution of diplomatic representation
involves the establishment and maintenance of permanent missions (embassies or high
commissions in most countries or as in the case of the UN and its specialized agencies
permanent representations.
Differences between an Ambassadors and High commissioners?
Ambassadors are representatives for non- common wealth countries and High
Commissioners are for common wealth countries but their functions are the same.
The law relating to diplomatic relations is now codified into diplomatic relations in
the 1961 Vienna Convention on Diplomatic relations which entered into force on 24th
April 1964.
The convention is composed of both declaratory and constitutive provisions. The
former are those that codify pre existing rules of customary international law which
developed as a result of state practice dating back to the days of the Greek City states.
To emphasize this point the preamble to the convention provides that where the
convention does not cover a particular issue, result is to be heard to rules of customary
The rules of Customary International Law on Diplomatic relations which are as old as
theof International Law systems itself.

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 Diplomatic relations are exercised by diplomatic envoys who are sent as representatives
of their states to the receiving state.
Article 14 of the convention divides these representatives into 3 classes:
1) Ambassadors or nuncios accredited to the heads of state and other heads of mission of
equivalent rank.
2) Envoys, ministers and inter nuncios accredited to head of states.
3) Charge’ d’affairesi accredited to ministers of foreign affairs.
Article 15 of the Vienna Convention-It is for the states concerned to agree upon the class
to which the heads of their respective missions shall be assigned.
Although there is no difference between heads of mission by a reason to their class
there is an exception as regards residence and etiquettes.
1. The 1st Class-Ambassadors or Nuncios are considered to be personal representatives
of their heads of states and for this reasons enjoy special honors. Their chief privilege is
that of negotiating with heads of states personally and to that extent can at all times
ask for audience from the head of states to whom they are accredited.They claim the
title of ‘Excellency’ by right.
2. The 2nd Class -Ministers and envoys accredited to head of states into which also
belongs the papal inter nuncios are not considered to be personal representatives of the
heads of the sates. Therefore, they do not enjoy all the special honors of ambassadors
have no privilege of treating the head of states personally and cannot at all times ask
for audience with him and receive the title of Excellency only by courtesy and not as of
rights.
3. The 3rd class-Charge'd'affairesi differs chiefly in one point than the others in that they
are accredited from foreign minister to foreign minister unlike the others who are
accredited from head of state to head of state. They therefore do not enjoy so many
honors as other diplomatic envoys.

ESTABLISHMENT OF DIPLOMATIC NATIONS

Under Article 2 of Vienna convention the establishment of diplomatic relations and
missions depends on mutual consent of the states concerned. International law has no
rules as regards qualifications of individuals whom a state can appoint as heads of

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diplomatic missions, states being competent to act according to discretion while some
states have laws that lay down details requirement as to the knowledge and training
which candidates to a permanent diplomatic post must possess.
The appointment is usually announced to the state in which the individual
representative is to be accredited in official papers known as letters of credence (Lettre
de cre'ance) which are remitted to the receiving states.
These(letters of Credence) may sometimes be accompanied by documents of full
powers relating to particular negotiations that the representative may be involved in.
Under article 4 of the convention the receiving states may refuse to receive diplomatic
envoys either
1) generally or in respect of a particular mission
2) Because a particular envoy is personally accepted.
The receiving state need not specify the objections or even justify them. Once the
receiving state gives its assent (agre’ment) the accrediting state then proceeds with the
formal appointment.
Under article 9 of the convention at any time receiving states may without obligation to
explain its decision declare an envoy a persona non grata and require that he or she be
recalled or his or her functions be terminated. As a rule a state appoints different
individuals as heads of diplomatic missions to different states. However, a state may
appoint the same person as head of its diplomatic missions in more than one state
unless there is any express objection by any of the receiving states (article 5)
Also two or more states may accredit the same person as head of their diplomatic
missions to another state unless that state rejects (Article 6)
The recognition of governments of states is a conditio sine qua non of the establishment
of diplomatic relations although the later is not necessarily a consequence of
recognition.
Neither does withdrawal or non establishment of diplomatic relations mean non
recognition.
There are several states we recognize but cannot afford to have diplomatic relations
with them.

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FUNCTIONS OF DIPLOMATIC ENVOYS
The essence of diplomatic relations is that state A licences state B representatives to
carry out political and other functions in state As territory. Article 3 of the Vienna
convention provides for the functions of diplomatic envoys.
A head of a permanent diplomatic mission(ambassador or Nuncio) such as/
example:Russia represents his home states in the totality of its international relations
with the receiving state.
Functions of diplomatic envoys
 He is the mouth piece of the head of his state and its foreign minister for
communications to be made to the receiving state.He likes wise receives
communications from the later and reports them to his home state. {Lecturer's
Explanation : if we have any communication to White house we use their ambassador in
Kenya}
 His task is further to ascertain by all lawful means, conditions and developments
in the receiving states and report there on to his governments.
 A 3rd task is the protection in the receiving state of the interests of his home state
and its nationals within the limits permitted by the IL. It is however for the laws
regulations and practices of its home states and not IL to prescribe the extent of
the envoys obligation to afford protection to its compatriot.
Besides these regular functions a diplomatic envoy may be charged with other and
more miscellaneous functions such as : The promotion of friendly relations between
his own state and the receiving state and the development of economic cultural and
scientific relations. The carrying out of these functions is facilitated by the concept of
diplomatic immunities and privileges from the jurisdiction of the receiving states.
These immunities and privileges are not rights given to diplomatic envoys by
International Law, but by the law of the receiving states in compliance with an
international right belonging to their home states.

They are rights of the envoys home state rather than of the envoy himself and are
granted to envoys as representatives of their states because they could not exercise their
functions properly unless they enjoyed such privileges. In other words the basis of the

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diplomatic envoys immunities and privileges is functional. Were the diplomatic
envoys liable to ordinary, legal and political interference, and accordingly more or less
dependent on the good will of the receiving state they might be influenced by personal
consideration of safety and comfort to such a degree that would materially compromise
their representation and functions. Hence, their immunities and privileges are
indispensible attributes of the diplomatic functions. Indeed the preamble to the Vienna
convention provides that the purposes of such immunity and privileges is not to benefit
individuals but to ensure the efficient performance of the functions of diplomatic
missions as representing states.

POSITIONS OF DIPLOMATIC ENVOYS AND MISSIONS

Position of diplomatic envoys and missions have attracted a lot of controversy simply due
to two reasons
There are two popular myths about diplomatic envoys and their immunities which
must be de banked.
1) The diplomatic mission premises are interpreted to be foreign territories
2) The diplomatic envoy is deemed not to incur legal liability in the receiving state
The 1st myth/reason is based on a confusion between territory or property and
jurisdiction over it and it is important to clarify it because it has sometimes arisen over
airships and aircrafts.
The building occupied by a foreign diplomatic mission and the land on which it stands
are part of the territory of the receiving state, and therefore under the jurisdiction of
that state although they may be the property of the sending state. However, the
members of the mission and their activities in the mission premises are primarily under
the control and jurisdiction of the sending state.
International Law avoids conflicts of jurisdiction between the sending states and the
receiving states by laying down rules to cover the entire field of diplomatic relations.
Accordingly, the premises of the foreign diplomatic mission are inviolable. This
inviolability has two distinct aspects
i) Immunity from any form of law enforcement by the authorities of the receiving
state such as entry, search requisition or even service of legal documents

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ii) The special duty “to take all appropriate steps to protect the premises of the
mission against any intrusion or damage and to prevent any disturbance of the
keys of the mission or impairment of its dignity.” (article 22)
The degree of the protection provided must be proportionate to the threat. Most charges
of breach of duty concerned failure to prevent attack or prevent intrusion following
special request from the embassy.
The inviolability of diplomatic premises was firmly held by the ICJ in the case
concerning US diplomatic v Consular Staff in Tehran (1980 ICJ report 1993)
{The inviolability is absolute even in cases of emergency we cannot enter without the consent of
the head of mission.]
FACTS OF THE CASE
The first phase of the events underlying the Applicant's claims covers the armed attack on the United
States Embassy carried out on 4 November 1979 by Muslim Student Followers of the Imam's Policy
(further referred to as "the militants" in the Judgment), the overrunning of its premises, the seizure of its
inmates as hostages, the appropriation of its property and archives, and the conduct of the Iranian
authorities in the face of these occurrences.
The second phase of the events underlying the United States' claims comprises the whole series of facts
which occurred following the occupation of the Embassy by the militants. Though it was the duty of the
Iranian Government to take every appropriate step to end the infringement of the inviolability of the
Embassy premises and staff, and to offer reparation for the damage, it did nothing of the kind. Instead,
expressions of approval were immediately heard from numerous Iranian authorities. Ayatollah Khomeini
himself proclaimed the Iranian State's endorsement of both the seizure of the premises and the detention
of the hostages.
He described the Embassy as a "centre of espionage", declared that the hostages would (with some
exceptions) remain "under arrest" until the United States had returned the former Shah and his property to
Iran, and forbade all negotiation with the United States on the subject.
Once organs of the Iranian State had thus given approval to the acts complained of and decided to
perpetuate them as a means of pressure on the United States, those acts were transformed into acts of the
Iranian State: the militants became agents of that State, which itself became internationally responsible
for their acts. During the six months which ensued, the situation underwent no material change: the
Court's Order of 15 December 1979 was publicly rejected by Iran, while the Ayatollah declared that the
detention of the hostages would continue until the new Iranian parliament had taken a decision as to their
fate.
On 29 November 1979 the United States of America had instituted proceedings against Iran in a case

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arising out of the situation at its Embassy in Tehran and Consulates at Tabriz and Shiraz, and the seizure
and detention as hostages of its diplomatic and consular staff in Tehran and two more citizens of the
United States. The United States having at the same time requested the indication of provisional
measures, the Court, by a unanimous Order of 15 December 1979, indicated, pending final judgment, that
the Embassy should immediately be given back and the hostages .
The United States filed a Memorial, and on 18, 19 and 20 March 1980 the Court held a public hearing at
the close of which the United States, in its final submissions, requested it to adjudge and declare, inter
alia, that the Iranian Government had violated its international legal obligations to the United States and
must: ensure the immediate release of the hostages; afford the United States diplomatic and consular
personnel the protection and immunities to which they were entitled (including immunity from criminal
jurisdiction) and provide them with facilities to leave Iran; submit the persons responsible for the crimes
committed to the competent Iranian authorities for prosecution, or extradite them to the United States; and
pay the United States reparation, in a sum to be subsequently determined by the Court.
Iran took no part in the proceedings. It neither filed pleadings nor was represented at the hearing, and no
submissions were therefore presented on its behalf. Its position was however defined in two letters
addressed to the Court by its Minister for Foreign Affairs on 9 December 1979 and16 March 1980
respectively. In these the Minister maintained inter alia that the Court could not and should not take
cognizance of the case.
The Court expresses regret that Iran did not appear before it to put forward its arguments. The absence of
Iran from the proceedings brought into operation Article 53 of the Statute, under which the Court is
required, before finding in the Applicant's favour, to satisfy itself that the allegations of fact on which the
claim is based are well founded.
In that respect the Court observes that it has had available to it, in the documents presented by the United
States, a massive body of information from various sources, including numerous official statements of
both Iranian and United States authorities. This information, the Court notes, is wholly concordant as to
the main facts and has all been communicated to Iran without evoking any denial.
The Court is accordingly satisfied that the allegations of fact on which the United States based its claim
were well founded.
The Court points out that the conduct of the militants on that occasion could be directly attributed to the
Iranian State only if it were established that they were in fact acting on its behalf. The information before
the Court did not suffice to establish this with due certainty. However, the Iranian State - which, as the
State to which the mission was accredited, was under obligation to take appropriate steps to protect the
United States Embassy - did nothing to prevent the attack, stop it before it reached its completion or
oblige the militants to withdraw from the premises and release the hostages. This inaction was in contrast
with the conduct of the Iranian authorities on several similar occasions at the same period, when they had
taken appropriate steps. It constituted, the Court finds, a clear and serious violation of Iran's obligations to

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the United States under Articles 22 (2), 24, 25, 26, 27 and 29 of the 1961 Vienna Convention on
Diplomatic Relations, of Articles 5 and 36 of the 1963 Vienna Convention on Consular Relations, and of
Article 11 (4) of the 1955 Treaty. Further breaches of the 1963 Convention had been involved in failure to
protect the Consulates at Tabriz and Shiraz.
The Court is therefore led to conclude that on 4 November 1979 the Iranian authorities were fully aware
of their obligations under the conventions in force, and also of the urgent need for action on their part,
that they had the means at their disposal to perform their obligations, but that they completely failed to do
so.
The Iranian authorities' decision to continue the subjection of the Embassy to occupation, and of its staff
to detention as hostages, gave rise to repeated and multiple breaches of Iran's treaty obligations, additional
to those already committed at the time of the seizure of the Embassy (1961 Convention: Arts. 22, 24, 25,
26, 27 and 29 1963 Convention: inter alia, Art. 33; 1955 Treaty, Art. II (4)).
With regard to the Charge d'affaires and the two other members of the United States mission who have
been in the Iranian Ministry of Foreign Affairs since 4 November 1979 the Court finds that the Iranian
authorities have withheld from them the protection and facilities necessary to allow them to leave the
Ministry in safety. Accordingly, it appears to the Court that in their respect there have been breaches of
Articles 26 and 29 of the 1961 Vienna Convention.
Taking note, furthermore, that various Iranian authorities have threatened to have some of the hostages
submitted to trial before a court, or to compel them to bear witness, the Court considers that, if put into
effect, that intention would constitute a breach of Article 31 of the same Convention.
Possible existence of special circumstances (paras. 80-89)
The Court considers that it should examine the question whether the conduct of the Iranian Government
might be justified by the existence of special circumstances, for the Iranian Minister for Foreign Affairs
had alleged in his two letters to the Court that the United States had carried out criminal activities in Iran.
The Court considers that, even if these alleged activities could be considered as proven, they would not
constitute a defence to the United States' claims, since diplomatic law provides the possibility of breaking
off diplomatic relations, or of declaring persona non "rata members of diplomatic or consular missions
who may be carrying on illicit activities. The Court concludes that the Government of Iran had recourse
to coercion against the United States Embassy and its staff instead of making use of the normal means at
its disposal.
International responsibility (paras. 90-92)
The Court finds that Iran, by committing successive and continuing breaches of the obligations laid upon
it by the Vienna Conventions of 1961 and 1963, the 1955 Treaty, and the applicable rules of general
international law, has incurred responsibility towards the United States. As a consequence, there is an
obligation on the part of the Iranian State to make reparation for the injury caused to the United States.

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Since, however, the breaches are still continuing, the form and amount of such reparation cannot yet be
determined.
At the same time the Court considers it essential to reiterate the observations it made in its Order of 15
December 1979 on the importance of the principles of international law governing diplomatic and
consular relations. After stressing the particular gravity of the case, arising out of the fact that it is not any
private individuals or groups that have set at naught the inviolability of an embassy, but the very
government of the State to which the mission is accredited, the Court draws the attention of the entire
international community to the irreparable harm that may be caused by events of the kind before the
Court. Such events cannot fail to undermine a carefully constructed edifice of law the maintenance of
which is vital for the security and well -being of the international community.
United States operation in Iran on 24-25 April 1980 (paras. 93 and 94)
With regard to the operation undertaken in Iran by United States military units on 24-25 April 1980, the
Court says that it cannot fail to express its concern. It feels bound to observe that an operation undertaken
in those circumstances, from whatever motive, is of a kind calculated to undermine respect for the judicial
process in international relations. Nevertheless, the question of the legality of that operation can have no
bearing on the evaluation of Iran's conduct on 4 November 1979. The findings reached by the Court are
therefore not affected by that operation.
Judgement
1. The Court Decided that the Islamic Republic of Iran, by the conduct which the Court has set out in
this Judgment, has violated in several respects, and is still violating, obligations owed by it to the
United States of America under international conventions in force between the two countries, as
well as under long-established rules of general international law;
2. That the violations of these obligations engage the responsibility of the Islamic Republic of Iran
towards the United States of America under international law;
3. That the Government of the Islamic Republic of Iran must immediately take all steps to redress the
situation resulting from the events of 4 November 1979 and what followed from these events, and
to that end:
a) must immediately terminate the unlawful detention of the United States Charge d'affaires
and other diplomatic and consular staff and other United States nationals now held hostage
in Iran, and must immediately release each and every one and entrust them to the
protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations);
b) must ensure that all the said persons have the necessary means of leaving Iranian territory,
including means of transport;
c) must immediately place in the hands of the protecting Power the premises, property,
archives and documents of the United States Embassy in Tehran and of its Consulates in
Iran;

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4. That no member of the United States diplomatic or consular staff may be kept in Iran to be
subjected to any form of judicial proceedings or to participate in them as a witness;
5. That the Government of the Islamic Republic of ban is under an obligation to make reparation to the
Government of the United States of America for the injury caused to the latter by the events of 4
November 1979 and what followed from these events;
6. That the form and amount of such reparation, failing agreement between the Parties, shall be
settled by the Court, and reserves for this purpose the subsequent procedure in the case.
The status of mission premises depends on their being used for the purposes of the
missions.
Where therefore the buildings cease to be used for the purposes of the mission the
inviolability lapses and the receding state is bound only by the lesser obligation to
“respect and protect” them under Article 45 of the convention.
Kenya broke diplomatic relations with Libya in 1950. Libyan embassy was protected
until Kenya resumed relations with Libya
This inviolability does not however make the premises foreign territory or take them
out of the rich of local law for many purposes. For instance a commercial transaction in
an embassy may be governed by the local law marriages may be celebrated there only if
conditions laid down by the local law are made and a child born in it will unless his
father has diplomatic status to acquire the local nationality.
Furthermore the mission may not abuse the hospitality of the receiving state by using
the premises to breach the local law.
Accordingly under Article 41 (3) of the Convention the premises of the mission must
not be used in any manner incompatible with the functions of the mission as laid down
in the convention or by other rules of general IL and an offence against the local law
committed on the premises is subject to any immunity of the offender punishable by
local courts.
Besides, building developments by foreign governments in respect of diplomatic
premises is subject to planning permission from the authorities of the receiving state.
The second is based on aconfusion between liability and immunity.
Although Article 49 of the convention provides that the person of the diplomatic envoy
shall be inviolable, that he shall not be subject to any form of arrest or detention and
that the receiving state shall treat him with due respect and take all appropriate steps to

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prevent any attack on his person freedom or dignity. The diplomatic envoy is not
exempt from legal liability but only from court proceedings in the receiving state.
He is not exempt from legal liability but is only exempt from the jurisdiction of our
court. So he may when his diplomatic status ceases be punished or sued in respect of
any criminal or civil liability that he has incurred. The presumption of the privileges he
enjoys is that he acts and behaves in such a manner as harmonizes with the internal
order of the receiving state whose laws and regulations is under a duty to respect.
Hence in the case of a serious offence or misconduct the sending state may waive
immunity in which case the diplomatic envoy is exposed to proceedings to which his
acts have made him liable or the receiving state may declare him persona non grata and
ask for his early departure from the country.
The only exception, to the liability of the envoy is in case of his official acts for which he
can incur no liability under the local law and his immunity from any proceedings in
respect of them is absolute and permanent.
The diplomatic envoys immunity is not immunity from legal liability but immunity
from suit. Read Empson vs Smith
Beneficiaries of Diplomatic Immunities and Privileges
Who are the beneficiaries apart from diplomatic envoy?
The diplomatic agent is the chief beneficiary of diplomatic privileges and immunities.
The inviolability of the diplomatic envoy both in peace time and between peoples at
war is a rule which goes back more than three thousand years.
Wherever in the world relations grew up between separate people, actually or
potentially hostile the duty to give special protection to the envoy who bore messages
was observed and enforced by sanctions which were in origin religious
During the 16th century the inviolability of the ambassador and his immunity from
criminal jurisdiction became firmly established as a basic rule of IL.
The personal inviolability of the diplomatic envoy now codified under article 29 of the
convention comprises two aspects
1) Immunity from any form of law enforcement action such as arrest, compulsory
search, breatherizing or the taking of blood or other samples.

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2) The duty to accord special protection by taking all appropriate steps to prevent any
attack on his person freedom or dignity.
Under article 31 of the convention the immunity from criminal jurisdiction of a
diplomatic agent has no exceptions reflecting the rule established by the doctrine and
practice of IL that receiving states have no right in any circumstances whatever to
prosecute and punish diplomatic agents.
The only actions open to the receiving state are political in character namely to draw the
facts to the attention of the head of the mission in the expectation of a reprimand by him
or to ask for a waiver of immunity or withdrawal of the offender by the sending state or
in serious cases to expressly declare him persona non grata and have his appointment
terminated by the sending state. In exceptional cases the receiving may savor relations
with the other state.

Immunity from the civil and administrative jurisdiction of the receiving state is subject
to three exceptions. Namely
1) A real action relating to private immovable property in the territory of the receiving
state not held by the envoy on behalf of his state and for the purposes of the mission
Envoys who fall in love with the country therefore buy property, this is not held on
behalf of his state or used for the commission, if a claim arises then the diplomatic
envoy cannot plead immunity if a suit is filed.)
2) An action relating to succession in which the diplomatic envoy is involved as
executor, administrator, heir or legatee as a private person.
A will as a private person, a suit arises on disinheritance.
3) An action relating to any professional or commercial activity exercised by the
diplomatic envoy outside his official functions.
However, in the last exception it should be noted that article 42 of the convention bars a
diplomatic envoy from practicing a professional or commercial activity or personal
profit in the receiving state.
Otherwise a diplomatic envoy cannot be sued nor arrested for debts incurred in the
receiving state nor can his furniture, vehicles and the like. The envoy is also immune

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from execution except where judgment has been obtained under any of the three
exceptions above and provided that execution does not infringe the inviolability of the
person or residence.
Besides, a diplomatic agent is not under any legal obligation to give evidence as a
witness.
Under Article 37 several members of a diplomatic mission are entitled to the
immunities and privileges specified in the convention. The members of the family of a
diplomatic envoy forming part of his household if not nationals of the receding state are
entitled to full diplomatic immunities and privileges.
Members of the administrative and technical staff and members of their families
forming part of their respective households enjoy full immunities and privileges with
only two exceptions namely
1) Their civil immunity is limited to act performed in the course of their duties
2) Their right to duty free import is limited to the time of their first arrival in their
receiving state.
Members of the service staff of the mission i.e. drivers, security guards, cooks and
cleaner who are not nationals or permanent residence of the receiving state enjoy
immunity only in respect of acts performed in the course of their official duties
exemption from use an taxes on their wages and exemptions from social security laws.
Private servants or members of the mission who are not nationals or permanent
residents of the receiving state are exempt from dues and taxes on their wages and on
condition of cover elsewhere from social security laws.
In other respects they may enjoy immunity and privileges only to the extent admitted
by the receiving state.
Under the convention classification of diplomatic staff is determined unilaterally by the
sending state so that in the absence of any object set of criteria a receiving state
suspecting over a classification has no firm basis of protesting.
Article 38 of the Convention limits diplomats who are nationals or permanent residents
of the receiving state to immunity from jurisdiction and inviolability in both cases only
for official acts performed in the exercise of their functions.

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Junior staff and private servants who are nationals or permanent residence have no
immunities or privileges. In general such staffs are not notified to the receiving state at
all.
The wife of ambassador and children enjoy immunity for convenience of the ambassador in
performance of his or her functions.

Waiver of immunities and privileges

Immunity from the jurisdiction of the court does not mean that the holder of the
immunity is above the law.
The obligations of municipal law remain binding on him but are only unenforceable
because of his status. ( He enjoys immunity from jurisdiction not liability)
Consequently the immunities and privileges can be waived there by changing an
unenforceable obligation into an enforceable one.
The immunities and privileges are conferred in the interest of and belong to the sending
state and can be waived only by that state. Hence article 32 of the convention provides
that waiver of immunity may be made only by the sending states and must be express.
The article recognizes that the purpose of immunity is to ensure the unhindered
performance of the diplomatic envoy duties and that the immunity is therefore due to
the state of which the envoy acts rather than the person or the envoy. However the
sending state may delegate authority in the matter to its head of mission usually after
consultation of the receiving state and may also give waivers in advance of particular
proceedings.
The article also specifies that the institution of a suit by a person enjoying immunity
shall amount to a “waiver in the face of the court” i.e. it shall preclude a plea of
immunity in any counter claims directly connected to the principal claim.

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Whereas a waiver of immunity in a court of 1st instance also covers appeals from the
judgments of that court it does not entail a waiver of immunity from enforcement of
the judgment. A separate waiver is necessary before execution can be levied against
the property of the envoy in order to satisfy an unpaid judgment date.
In most cases, a state which waives immunity from jurisdiction will be prepared to
carry out an adverse judgment.

Duration of privileges and immunities(for how long do they last)

Customary International Law relating to the commencement and termination of
immunities and privileges has been codified in Article 39 of the convention.
Immunities begin at the moment of entry by the diplomatic envoy into the territory of
the receiving state en route to his post of if already present from the moment
appropriate ministry in the receiving state is notified of his approval
When the appointment is terminated immunities and privileges cease to apply when
the envoy leaves the receiving state or after a reasonable period even in the case of
armed conflict.
Article 39 (2) of the convention provides that with respect to acts performed to the
exercise of his functions as a member of the mission immunity continues to apply even
after the envoy is no longer entitled to it.
In other words immunity for official acts subsists indefinitely.
A plaintiff barred by immunity may sue a diplomat in his home state where he has
jurisdiction or may lay the matter before his own government for his claim to be
followed through diplomatic channels.
This Article 39 also provides for a reasonable period of continued immunity for
members of the family in the case of a diplomatic envoys death while on the post.

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CONSULAR IMMUNITY
Consuls are agents of a state in a foreign country concerned with the commercial
interest of the sending state rather than diplomatic functions. Accordingly they are not
diplomatic envoys. Consuls are concerned with international economic relations of
states rather than their political relations. Although consular relations may also be
tacitly established through the consent to establish diplomatic relations, the opposite
case is not common this is because consular relations are independent of diplomatic
relations.{Diplomatic relations can lead to consular relations however there can be a consular
relation with a state but no diplomatic relations}
The establishment of consular relations as well as the establishment of the consular post
on the territory of the receiving state takes place by mutual consent.
In particular the approval of the receiving state is necessary for the establishment of the
seat of the consular post, its classification, the size of the consular staff and the consular
district.
The number of consular posts depends on the consular needs of each particular state i.e.
a state with a great no, of its citizens in another state may have a greater no. of
consulates in that state than the later has on the territory of the former.( Both Diplomatic
and Consular relations are established by consent)
The consul must have the authority of the sending state (his commission) and the
authorization of the receiving state referred to as an exequator in order to carry out his
functions.
The functions, immunities and privileges of consular officers are regulated by the 1963
Vienna Convention on Consular relations. (Exam)

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Functions of the consular offices
Article 5 of the convention lists the functions of the consular offices. These include
 Protecting in the receiving state the interests of the sending states and of its nationals
 Furthering the development of commercial, economic, cultural and scientific
relations
 Issuing passports, visas and travel documents
 Helping and assisting nationals of the sending state.
 Exercising rights of supervision and inspection of vessels and aircrafts of the
sending states (Wildenhus case) and extending the necessary assistants to such
vessels and aircrafts and their crews including conducting investigations and
settling disputes between the masters and crews or passengers.
 The attestation and legalization of signatures, examination of witnesses and
administration of oath for the purpose of procuring evidence for the courts and
other authorities of the sending state.
Under Article 28 of the convention the receiving state must accord full facilities for the
performance of the functions of the consular posts.
However, the receiving states reserves a rights under Article 23 at any time even before
arrival and without reasons having to be given to declare the head of a consular post or
other consular officer a persona non grata (Article 23)
Although consuls do not enjoy the positions of the diplomatic envoys being appointed
by foreign states and having received the exequatur they are publicly recognized by the
receiving states as agents of the sending state although for a limited number of tasks
and for local purposes only.{Exequatur-[Latin "let it be executed"] A written official
recognition and authorizationofa consular officer, issued by the government to which the officer
is accredited. "Consuls on exhibiting proof of their appointment, if not objectionable persons,
receive an exequatur, or permission to discharge their functions within the limits prescribed,
which permission can be withdrawn for any misconduct.}
The official position of consuls however does not involve direct interaction to the
government of the receiving state.They are appointed for local purposes only and have
direct interactions with local authorities only.

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If they desire to approach the central government itself, they normally do so through
their sending states diplomatic envoy to whom they are subordinate.
Accordingly their immunities and privileges are very limited.
Although the receiving states must give consular officials’ premises special protection
only two consular immunities are generally recognized in customary International Law
namely:
1) The inviolability of consular archives and premises
2) The immunity of consuls for their official act.
Under the provisions ofArticles 32 provide that consular premises are exempt from all
taxes other than dues representing payments for specific services rendered and all
articles to be used by the consular post are an exempt from customs duties.
Article 31 of the convention provides for the inviolability of consular premises. This
inviolability includes 2 obligations:
1) A special obligation to protect such premises by taking all appropriate means in
order to prevent any act or violence against the consular premises or any
disturbance of its peace or impairment or its dignity.
2) The duty not to enter the part of the premises used exclusively for the purpose of the
work of the post except with the consent with the head of the consular post or of his
designee or of the head of the sending state diplomatic mission.
A specific exception to this rule is provided for under Article 31paragraph 2 under
which the consent may be assumed in cases of emergency requiring prompt protective
action.
In 1979, there was a fire in the Ghanaian mission in International house and the mission
was not present to give consent to fight the fire.
The inviolability of consular premises is not therefore not absolute as is the case of
diplomatic premises.
Under the provisions of Article 33 consular archives and documents are inviolable at all
times and wherever they may be. This inviolability is absolute even in the event of
armed conflict.
Under Article 35 the official correspondence of the consular post is also inviolable and
the post must be allowed freedom of communication for all official purposes.

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Consular couriers and bags may be used in communicating with the government
diplomatic mission or other consular posts of the sending posts. The consular bag must
be neither opened nor retained and in the performance of his functions the consular
courier must be protected by the receiving state. Nevertheless, if the competent
authorities of the receiving State have serious reason to believe that the bag contains
something other than the correspondence, documents or articles referred to in
paragraph 4 of this article, they may request that the bag be opened in their presence by
an authorized representative of the sending State.
If this request is refused by the authorities of the sending State, the bag shall be
returned to its place of origin.He enjoys personal inviolability and cannot be arrested or
detained.
The convention makes a distinction between carrier consuls Article 40-57 and honorary
consuls (Articles 58-57) with more immunities and privileges being accorded to the
former.
Under Article 41 carrier consular officers are not 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.
Otherwise the consular officers cannot be committed to prison or be liable to any other
form of restriction of their personal freedom except in the execution of a judicial
decision of final defect.
If any criminal proceedings are instituted against a consular officer he must appear
before the competent authority and the proceedings must be conducted with respect
due to him by reason of his official position and in a manner that will not unduly
hamper the discharge of his consular functions.
Where it is necessary to detain the officer the proceedings against him must be
instituted with minimum delay.
Consuls are in principle subject to the jurisdiction of the receiving state except that
they are not amenable to the jurisdiction of the judicial or administrative authorities
of the receiving state in respect of acts performed in the exercise of consular functions.

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These exceptions is due less to any personal immunity from jurisdiction possessed by
the consular officers than to the immunity from the jurisdiction of the receiving state
which the sending state has in respect of its act.
However, even where consular officers have jurisdictional immunity they are under
duty to respect the laws and regulations of the receiving state and not to interfere in the
internal affairs of that state (Article 55)
Otherwise under Article 46 consular officers are exempt from all obligations under the
laws and regulations of the receiving state in regard to the registration of aliens and
residence permits.
With respect of services rendered in the sending states members of the consular posts
and members of their families forming part of their households are exempt from
requirements for work permits imposed by the laws and regulations of the receiving
state concerning employment of foreign labour (Article 47)
They are also exempt from social security provisions in force in the receiving
state{Article 48} all dues and taxes except those specifically provided for{Article 49} all
customs, duties and taxes, on articles for the official use on the consular post as well
those for their personal use or that of members of their households. {Article 50(1)}
The personal baggage accompanying consular officers and members of their families
forming part of their households are exempt from inspection and customs duties unless
there is serious reason to believe that the baggage contains articles other than those for
official or personal use or articles of import or export of which is prohibited by the laws
and regulations of the receiving state or which are subject to its quarantine laws and
regulations.{Article 50(3)}
Article 53 of the convention provides that every member of the consular post enjoys his
immunities and privileges from the moment he enters the receiving state on the way to
his post or if already in its territory on entering upon his duties with the post.

Members of his family forming part of his household and of his private staff, commence
the enjoyment of immunities and privileges either when he himself does or on entry

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into the receiving state or upon the becoming a member of the family of private staff
whichever is the latter.
The Article further provides, that when the functions of the members of the post have
come to an end his immunities and privileges as well as those of the members of his
family forming part of his household and of his private staff cease either upon his
leaving the receiving state or after a reasonable time in which to do so whichever is the
sooner.
This is so even in cases of armed conflict. However the immunity enjoyed in respect of
act performed in the exercise of official functions continues without any limitation of
time. check added statement.
Three things to note:
1. Although diplomatic functions differ from and are governed by different rules from
consular functions, the consent given in the establishment of diplomatic relations
between two states, implies, unless otherwise stated, consent to the establishment of
consular relations. However, the severance of diplomatic relations does not ipso facto
involve the severance of consular relations (Article.2). Besides, in contradistinction on
diplomatic mission, the consular office does not come to an end through a change in the
headship of the appointing or admitting state. The reason for that is that diplomatic
envoys are appointed by ne head of state to one head of state.
If Kibaki ceases to be head of state of Kenya all diplomatic envoys appointed are recalled and
Kenyatta has to appoint his. For consular officials they do not have to be recalled because
they are not accredited by one head of state to another head of state.
Neither a new commission nor a new exequatur is therefore necessary when a new king
comes to the throne or where a monarchy comes into a republic or in any like case.

2. On their way to take up or return to or return from their post, consular personnel
may have to pass through the territory of another state. Article.54 of the Convention
requires such transit states to grant to consular officers or members of their families
forming part of their households, such immunities and privileges provided for in the
convention and shall be required to facilitate the transit or travel required without

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hindering the transit of other members of the consular post or of members of their
families forming part of their households.
3. The third is in the light of the 1986 Convention on the Prevention and Punishment of
Crimes Against Internationally Protected Persons including Diplomatic Agents
provides further international protection to heads of state and heads of government,
international officials e.g. UN Secretary General and his deputies and diplomatic agents
from crimes against their persons. This means that apart from the Vienna Conventions,
there is this protection under 1986 convention.
IMMUNITIES OF INTERNATIONAL ORGANIZATIONS
Customary International Law does not demand that international organizations and
their personnel be exempt from the jurisdiction of states. The matter is regulated by
specific treaty provisions in particular the treaties creating the international
organizations concerned or by the headquarters agreements concluded by the host state
where the organization is seated. E.g. when you look at the UN HQ at New York or
UNEP in Kenya and its HQ agreement with UN... Accordingly, League of Nations
provided in Article.7 that the representative and officials of the League when engaged
in the business of the League were to enjoy diplomatic immunities and privileges.
The UN Charter in Article 105 provides that the Organization shall enjoy the territory of
each of its members, such privileges and immunities as are necessary for the fulfillment
of its services. The representatives of the members of the UN and officials of the UN
shall similarly enjoy such immunities and privileges as are necessary for the
independent exercise of its functions in connection with the Organization.

Acting under Article 105 (3) of the Charter, the UN General Assembly, did, in 1936
adopted the General Convention on the Privileges and Immunities of the United
Nations that provides details of the privileges and immunities enjoyed by the UN as an
international legal person.
Article 105 UN Charter
1. The Organization shall enjoy in the territory of each of its Members such privileges
and immunities as are necessary for the fulfillment of its purposes.

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2. Representatives of the Members of the United Nations and officials of the
Organization shall similarly enjoy such privileges and immunities as are necessary for
the independent exercise of their functions in connection with the Organization.
3. The General Assembly may make recommendations with a view to determining the
details of the application of paragraphs 1 and 2 of this Article or may propose
conventions to the Members of the United Nations for this purpose.

The UN General Assembly also adopted the Convention on the Privileges and
Immunities of Specialized Agencies of the United Nations. These are like FAO, WHO,
ILO, IMO, UNESCO etc. Under the Provisions of Section 2(2) of the 1946 General
Convention on the Immunities of Specialized Agencies of the United Nations , the UN
enjoys complete immunity from all legal process. Under Section 3 and 4 , its premises,
assets, archives and documents are inviolable. Under s.7 the UN is exempt from direct
taxes and customs duties while under s.8 its personnel are exempt from income tax on
their salaries. (Section VII & VIII)
Under Section 19 , the Sec Gen and the Assistant Secretaries General have diplomatic
immunity. Other staff members only have limited immunities such as immunity from
legal process in respect of their official staff and exemption from military service
(Section 18 ).
Under Section 20 , Secretary General must waive staff member’s immunity if in his
opinion the immunity may impede the course of justice and can be waived without
prejudice to the interests of the UN.
Representatives of member states attending UN meetings are granted almost the same
privileges like diplomats except that their immunity from legal process applies only to
their official acts and they are immune also to customs duty only with respect to
personal baggage.
Apparently, the purpose of immunity in the case of international organizations and
their personnel is a purely functional one related to the specific tasks of the
organizations as set out in their constitutive instrument and serves to secure its ability
to perform them.

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It is not a reflection of sovereignty except only in the very indirect sense of also serving
to protect interests of member states of the respective organization. Explanation: When
states set up an international organization, they set it up to carry out functions of mutual
interests of the member states. Where it is granted immunity therefore, it indirectly means the
ability of member states to realize and secure their interests.
PRACTICE QUESTION
a) Explain the legal basis for the granting of immunities to agents of states and
international organizations and why such immunities should be extended to members
of their families and households.
b) The Kenya Commissioner of Police telephones the Internal Security Department of
the Office of the President to report that gun shots and shouts for help can be heard
from the from the Indian High Commission in Nairobi. He wishes to be advised
whether the Kenya Police force is entitled to enter the High Commission to investigate
the shooting incident. You are the Permanent Secretary in charge of internal security.
Advise the Police
Commissioner

N/B
 The two are established by mutual consent of the states concerned.
 Consular relations are at a lower level than diplomatic functions
 Consular functions are economic, social, cultural while diplomatic are political.
 A diplomatic envoy is a personal representative of the head of the sending state to
the head of the receiving state and that’s why when there is a change in the head of
state the envoy is also changed. The envoys are personal representatives even when
they are career diplomats
 A severance/change of diplomatic relations does not mean the severance/change of
consular relations

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 When there is a change of head of state, the heads will send their personal envoys
but in the case of consular relations no new exequatur is required when the head of
the state changes.

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STATE RESPONSIBILITY
Introduction
Whenever a duty established by a rule of IL has been breached by an act of commission
or omission a new legal relationship comes into existence. This relationship is
established between the subject to which the act is imputable who must make adequate
reparation and the subject who has suffered damage as a result of the breach. The law
of state responsibility is concerned with the determination whether there is a wrongful
act for which the wrong doing state is to be held responsible what the legal
consequences(legal consequences of the wrongful act) are such as an obligation on the
part of the wrong doing state to restore the previous situation of to pay compensation
and how such International responsibility may be implemented as for instance through
counter measures adopted by the victim state such as reprisals or retortions.
The principles of state responsibility have been the subject of the extensive
consideration by the International Law Commission( Function of International Law
Commission codification and development of International law)which at its 53rd session held
in August 2001 adopted the final text of the Draft Articles Responsibility of States for
Internationally Wrongful Act. The Draft Articles are divided in three parts
i) Deals with the origins of state responsibility and contains rules relating to the
nature of responsibility, the circumstances in which liability can be imputed to
the state and general defenses.
ii) Deals with the consequences of a state being fixed with responsibility specifically
the rights of an injured state against the responsible state.
iii) Deals with implementation of state responsibility and is concerned with such
matters as the resolution of disputes.
Many of the Draft Articles represent rules of customary International law as well as
rules developed through decisions by International Trade Unions.
For instance in the Chorzow Factory (indemnity) (Merits) Germany Poland (1928)
The permanent court of international justice declared that "It is a principle of IL, and
even a general conception of law, that any breach of an engagement involves an
obligation to make reparation "and that reparation is an indispensable complement of a
failure to apply a convention and that there is no necessity for this to be stated in the

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convention itself.Similarly in the Corfu Channel Case Merits ICJ placed Albanians
liability to Great Britain for failure to notify British Ships about mines in the Albanian
waters of the Corfu channel which exploded and damaged the ships on what the court
refers to as, “Certain General and Well recognized principles” including “every states
obligation not to allow knowingly its territory to be used for acts contrary to the
rights of other states. Consequently Albania was under a duty to pay compensation of
the UK. In that case the ICJ blamed Albania for failure to notify British of the presence
of mines which exploded and damaged the ships on”certain general and well
recognized principles “ including every state’s obligation not to allow knowingly to
allow its rterritory to be used for acts contrary to the rights of other states.”.
Consequently, Albania was under duty to pay compensation to Britain for damage to its
warships.
Facts of the case
On 22nd October 1946 a squadron of British Warships, the cruisers Mauritius and
Leander and the destroyers Saumarez and Volage left the court of Corfu and proceeded
Northwards through a channel previously swept for mines in the North Corfu Strait
which formed part of Albanian Territorial waters. Outside the Bay of Saranda, the
Saumarez struck a mine and was heavily damaged while towing the damages ship the
Volage struck a mine and was much damaged. Following the incident, the UK mine
sweepers swept the North Corfu Channel and found 22 mines.
In October, 1944 the North Corfu Channel was swept by the British Navy and no mines
were found in the Channel. In January and February 1945 the channels were checked
swept by the British Navy with negative results. In this swept channel where the
minefield was found in Nov 13th 1946.
The mining of the Saumarez and Volage occurred in the Albania Territorial Waters just
at the place in the swept channel where the mine field was found.
By a special agreement referred to as (compromis) the UK and Albania referred their
dispute to the ICJ to determine inter alia whether Albania was responsible under IL for
the explosions which occurred on 22nd October 1946 in Albanian waters and for the
damage and loss of life which resulted from them and whether there was any duty to
pay compensation.

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The court held that Albania was responsible under IL for the explosions which occurred
in Albanian waters. It came to the conclusion that the laying of the mine field which
caused the explosions on the 22nd October 1946 could not have been accomplished
without the knowledge of the Albanian Government. Court relied on circumstantial
evidence.
The Albanian Government was thus under an obligation to notify the existence of a
minefield in its territorial waters and to warn the British warships as well as the
international community of imminent danger to which the minefield exposed them.
Kenya was duty bound to protect during the 1998 bomb blast – Kenya failed to do its
duties under IL – see Vienna Convention on Diplomatic Relations of 1961.
The constituent elements of responsibility - Circumstances under with a state may be
held responsible.
IL makes no distinction between tortious and contractual liability. The breach of a treaty
of customary law will give rise to the same remedy usually an award of damages or a
declaration. However, whether responsibility is based on the principle of strict liability
on the part of the state or on the principle of fault or intention on the part of the state
official concerned a state will be held internationally responsible if the following
essential elements are proved.
1) An act of commission or omission that violates an obligation established by a rule
of IL in force between the state responsible for the act and the state injured
thereby.
The responsibility of the state does not require an act of malice, negligence or
carelessness on the part of any individual state agent. Indeed it may consist of a general
defect of failure in the structure of the state or its public administration and be entirely
separated from any subjective intention - the injured state need not prove of negligence.
Fault on the part of the state or any of its organs may not even be there . Accordingly
in the Corfu Channel case the I.C.J sought to determine responsibility by attempting to
see whether there had been a violation of pre-existing obligation. The conclusion that
Albania had knowledge of the mine field in its territorial waters didnot imply
acceptance of the doctrine of fault. The knowledge postulated by the court was
necessary to determine that a pre-existing obligation had been violated since only a

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state which knows that a mine field has been located on its territorial waters will be
obliged to notify other states of its existence. Albanian responsibility was based on the
knowledge of the mine fields and not any wrongful intent or negligence on its part.
2) The unlawful act must be imputable to the state as an International Legal Person .
Imputability has the effect of indicating that the act in question is an act of the state
concerned.The state will only be responsible for acts committed by its officials or organs
which are delictual according to IL regardless of whether the officials or organs have
acted within the limits of their competence or have exceeded those limits where they
have acted as authorized officials or organs or are in so acting used powers or measures
appropriate to the official character.
If one is a legislator and enacts the legislation one is not exceeding his powers but if the
legislation entails a breach of International responsibility then that will be a breach.
The general rule regarding state organs and officials is now found in Article IV of the
international law commissionsDraft Articles which provides that the conduct of any
state organ shall be considered an act of that state under IL whether the organ exercises
legislative, executive, judicial or any other functions.
If a judge in Kenya makes a decision that is contrary to IL and has international
implications then Kenya will be liable for consequences as a state. This also applies if
that law affects a foreigner in Kenyan territory.
Under article 6 the conduct of an organ placed at the disposal of a state by another state
shall be considered an act of the former state if that organ was acting in the exercise of
governmental authority of the former state.
For instance the conduct of the Privy Council cannot be attributed to the UK but to the
state at the disposal of which it has been placed.If an appeal lies from Jamaica to the
Privy Council (the UK), UK is not responsible but Jamaica is held responsible for any
misconduct of the Privy Council.
Article 7of the Draft Articles embodies a well established customary rule that wrongful
acts may be imputed to the states when its organs or officials act beyond their legal
capacity but act to all appearances as competent officials of organs. It provides that the
conducts of an organ of a state or of a person or entity empowered to exercise elements
of the governmental authority shall be considered an act of the state under IL if the

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organ, person or entity acts in that capacity even if it exceeds its authority or
contravenes instructions.
In principle the acts of a person or group of persons not acting on behalf of the state
shall not be considered as acts of the state under IL unless the person or group of
persons was exercising elements of governmental authority in the absence of
government officials and under circumstances which justify them in assuming such
authority. This principle was emphasized in the:
Home Missionary Society Claim (US v Great Britain) 1920 Vol 6 of RIAA page 42.
(Reports of the International Arbitral Awards)
Where the Arbitral Tribunal stated that it was a well-established principle of
international law that no government can be held responsible for the act of rebellious
men (and women committed in violation of its authority where it is itself guilty of no
breach of good faith or of no negligence in suppressing insurrection).
FACTS : The collection of a new tax imposed by Britain on the indigenous people of
Sierra Leone led to serious and widespread revolts during which missions were
attacked and either destroyed or damaged and some missionaries murdered.
The Home Missionary Society an American Religious Body had its property destroyed
and some of its personnel in Sierra Leone killed. The US alleged that in the face of a
crisis the British government failed to take the proper steps for maintenance of order
and that the loss of lives and the destruction of property were a result of this neglect
and failure of duty. The claim failed because inter alia there was no failure of duty on
the part of Great Britain on the facts.However, in some cases the acts of private
individuals may be accompanied by some acts or omission on the part of the state for
which the state becomes liable. But such acts of commission or omission may take one
or more of the following six forms, namely
1) Encouraging individuals to attack foreigners
2) Failing to take reasonable care to prevent the individuals when an attack is
imminent. What constitutes reasonable care on the part of the state will depend on
the circumstances of each case
3) The obvious failure to punish the individuals responsible for the act. CASE – JANES’
CLAIM (USvs MEXICO) 4 RIAA 82. Baron Everett Janes a US Citizen was murdered

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 in Mexico on July 10, 1918 by a Mexican Citizen one Pedro Carbajal a former
employee of an American company doing business with Mexico and of which Janes
was the superintendent. The killing took place in the view of many persons
residents in the vicinity of the company’s office. The local police magistrate was
informed of the killing and within 5 minutes of the commission of the crime arrived
at the scene soon thereafter. He delayed in assembling his policemen for half an
hour and insisted that they should be mounted (horses). The company provided the
necessary animals and the posse after the lapse of more than an hour from time of
the shooting the police started in pursuit of Cabajal who had departed on foot. The
posse failed to apprehend the fugitive. Cabajal at a ranch six miles away from the
place of the crime for a week and came twice to the place during his stay at the
ranch. Subsequently, he moved far away about 25 miles from the place of the crime
and although this information was communicated to the Mexican civil and military
they failed to take any steps on Cabajal. Eight years after the killing, Cabajal was still
not apprehended and remained unpunished for the murder of Janes. The US alleged
in the circumstances the Mexican authorities had failed to take prompt and
adequatemeasures to apprehend and charge Cabajal and consequently Mexico was
responsible for the killing. The Mexico-US General Claims Commission found for
the US.
4) Failure to provide the injured foreigner with an opportunity of obtaining
compensation from the wrong doers in the local court i.e. denial of justice. See
Naziri Ibrahim Ali’s case and duty free shops at JKIA – ICSK?
5) Obtaining some benefit from the individuals (wrongful) act
6) Express ratification of the individuals’ act that is to say expressly approving the act
and stating that the person was acting in the name of the state.
However, in some cases, the act of private individuals may be accompanied by some
act or omission on the part of the state for which the state becomes liable. (This is an
exception )Kenya will not be responsible at the International level for injury suffered
by a foreigner but in some cases the riotous act of the group from Kenya can be as a
result of omission on part of Kenya and it will be liable). Such acts or omission may
take one or more of six forms namely:

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1) Encouraging individuals to attack foreigners
2) Failing to take reasonable care to prevent the individuals when an attack is
imminent
3) The obvious failure to punish the individuals concerned. Illustrated by:
Janes’ Claim (USA v Mexico) 1926 4 RIAA 82. CASE .
Byron Everette Janes a US citizen was murdered in Mexico on July 10 th 1918 by a Mexican
citizen, one Pedro Carbajal, a former employee doing business in Mexico and which Janes was
the superintendent. The killing took place in the view of many persons resident in the vicinity of
the company’s office. The local police magistrate was notified of the incident and death within
five minutes of the commission of the crime and arrived at the scene. He delayed in assembling
his policemen for half an hour and insisted that they should be mounted, that they should come
on horseback. The company provided the necessary animals and after the lapse of more than an
hour from the time of the shooting the police started in pursuit of Carbajal who had departed on
foot. They failed to apprehend him but Carbajal remained at a ranch six miles from the scene of
the crime for a week and came to the place twice while staying at the ranch.

Subsequently he moved farther away about 25 miles from the place of the crime and although
this info was communicated to the Mexican civil and military authorities they failed to take any
steps to apprehend Carbajal. 8 years after the killing was still not apprehended and remained
unpunished for Janes’ murder.
The US alleged that in the circumstances the Mexican authorities had failed to take prompt and
adequate measures to apprehend and punish Carbajal and that consequently Mexico was liable
for the killing. The Mexico/ U.S General Claims Commission found for the US, that is, Mexico
was liable and was to compensate the US.
4) Failure to provide the injured foreigner with an opportunity of obtaining
compensation from the wrong doers in the local court i.e. denial of justice e.g The case
of Nasiri Ali whose duty-free shops were taken away from him by Kenya and was
deported without compensation. He would have gone to Kenyan Court.
5) Obtaining some benefit from the individuals wrongful act e.g Loot and Share the
proceeds

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6) Express ratification of the individuals’ act namely expressly approving it and
stating that the person was acting in the name of the state.

For instance in the US diplomatic and consular staff in Tehran Case the ICJ held that
when 17th November 1979 Ayatollah Khomeini issued a decree maintaining the
occupation of the US Embassy and the detention of hostages until the US handed over
the shah for trial in Iran. The acts of the private individuals were adopted by the state
and thereby arose the responsibility of Iran in IL arose.
The ILCDA (International Law Commission Draft Articles) provide for two situations in
which a state may be responsible for unlawful acts committed by private persons.
i) Under article 8 the conduct of a person or group of persons shall be considered an
act of a state under IL if the person or group of persons is in fact acting on the
instructions or under the direction or control of that state in carrying out the
conduct.
ii) Under article 11 conduct attributable to individuals shall nevertheless be considered
an act of a state under IL if and the extent that the state acknowledges and adopts
the conduct in question as its own – happened in the Iranian Case.
3) Loss or damage must have resulted from the unlawful act
In Interstate relations the concept of damage does not have an essentially material
character, it could also be moral. Material damage is any prejudice caused to the
economic or patrimonial interest of a state or its nationals whereas Moral Damageis any
breach of a states honor or dignity. Both the material and moral damage may be taken
into account when appraising the modalities and quantum of the ensuing reparation.
Indeed state practice shows that most of the time if a state is not injured at the material
or moral level by the action of another state, it does not invoke international rules or
state responsibility against that state.
However, nothing precludes states from setting up by treaty as opposed to customary
law a legal regime whereby a state incurs its responsibility for the breach of an
obligation towards another contracting party even if it has caused no material or moral
damage but only a legal injury. This legal injury resides in the violation of the right
accruing to the other contracting state in correspondence to the obligation breached. For

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instance under the GATT WTA Agreement, a contracting party may invoke the
responsibility of another party on account of the mere contravention of an obligation
laid down in the agreement even in the absence of a material or moral damage to itself.

Justifiable acts causing loss or damages

{Acts causing harm or damage but the state does not incur liability - State A suffers
loss or injury but State B can justify it under IL)
An important consideration to be taken into account on establishing the responsibility
of a state is whether they are circumstances precluding wrongfulness and hence
responsibility. State practice and case law as codified in the International Law
Commission Draft Articles show that there are certain circumstances in which an act
causing loss or damage may be justifiable in International Law and consequently not
actionable.
1) Consent – if state A gives consent to state B for carrying out activities
Consent to carry out activities that would otherwise be prohibited by International Law
renders those activities lawful. The consent must be given before or at the same time as
the violation. Retrospective consent would constitute a waiver of the right to claim
reparation.
However consent is not valid if it is directed to permitting activities contrary to jus
cogens such as consent for the foreign armed forces to enter the territory of another state
to massacre civilians or a specific ethnic group or commit Genocide.
Consent will furthermore be vitiated by error, coercion or fraud. According to Article
20 of the International Law Commission Draft Articles, VALID (not vitiated by error,
coercion or fraud) consent by a state to the commission of a given act by another state
precludes the wrongfulness of that act in relation to the former state to the extent that
the act remains within limits of that consent.
2) Defense
International law recognizes that certain acts which would otherwise or ordinarily be
unlawful are when committed in self defense legitimate and do not give rise to
responsibility.The law of self defense finds expression in Article 51 of the UN Charter
which provides that nothing in the charter shall impair the inherent right (by virtue of
its sovereignty) of the individual or collective self defense if an armed attack occurs

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against a member of the UN until the Security Council has taken measures necessary to
maintain International peace and security. Self defense can be resulted to on the
violation of the right of territorial integrity, the right to political independence, right of
protection over nationals as well as some rights of an economic nature. Remember the
case of Iraq raiding Kuwait where Iraq was bombarded – US amassed 1.5m troops and
eventually smoked Saddam Hussein and murdered him. There was collective defense
of several allies and Iraq has never claimed to this day.
Self defense must however limit itself to rejecting the armed attack and must not go
beyond this purpose.
State practice is not yet universally accepted but it is pre empting.
Consequently,
i) The victim of the violation must not occupy the violator state territory unless this is
quickly required by the need to hold the aggressor in check and prevent the
continuation of aggression by other means.
ii) Self defense must come to an end as soon as the Security Council steps in and takes
over the task of putting to an end of the violation and the restoration of international
peace and security
iii) Self defense must cease as soon as its purpose i.e. the repulsion of the armed attack
has been achieved
Military action over-stepping the rejection of the aggression is neither authorized nor
condoned by article 51 of the charter and general IL. Article 21 of the ILCDA simply
provides the wrongfulness an act of a state is precluded if the act constitutes a lawful
measure of self defense taken in conformity with the Charter of the UN. Self defense is
normally a reaction to attack by another state. What about the case of al Shabab on their
attack in Kenya? Al Shabab is not supported by state of Somalia yet we attack Somalia territory.
Kenya did not suffer an attack from Somalia as an International Law Person but from Al Shabab
a criminal gang. Kenya went to Somalia with the consent of Somalia to also help fight Al
Shabab. So it is not in self defense. No single shot has been fired against the state of Somalia and
the SC has never taken up this matter to debate it or contribute. See antecedents and precedents
of self-defense.

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Article 21 of the ILCDA simply provides that the wrongfulness of the act of a state is
precluded if the act constitutes a lawful measure of self defense taken in conformity
with Charter of the UN.
In the event of a breach of IL, the injured state as an individual state is legally entitled to
disregard an international obligation owed to the delinquent state by taking counter
measures.
3) A counter measure
In the event of a breach of IL, the injured state as an individual state is legally entitled to
disregard an international obligation of the delinquent state by taking counter-
measures. A counter measure is an illegal act that is rendered lawful as a response to a
prior illegal act. Counter measures must however fulfill some basic conditions and are
in addition aresubject to a number of limitations – when state A has been injured by the
wrongful act of state B and state B takes an illegal act to the wrongful act of state A,
then that illegal act of state B becomes lawful.The conditions are that;
i) The injured state is not allowed to result to taking counter measures as soon as a
wrong occurs - as opposed to a self defense that you take action immediately. It
must first call upon the responsible state to discontinue wrongful action or to
make reparation.
ii) If the secession of the wrong is not obtained or no reparation is made i.e. there is
an unsatisfied demand, the injured state must endeavor to obtain through
negotiations pursuant to the general obligation under the UN Charter for
peaceful settlement of the dispute. Only when the author of the wrong doing
refuses to engage in negotiations or willfully or malafide hampers the working of
other means of settlement can the injured state consider in good faith that no
other choice is available except countermeasures.
The taking of counter measures is subject to a number of limitations. These are;
1) Counter measures may not involve the threat or use of force contrary to the UN
Charter
2) Counter measures may not disregard International rules for the protection of human
rights or the dignity and welfare of human beings in general – Uganda has committed
an illegal right against Kenya. Kenya has asked Uganda to stop and make reparations.

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 Uganda refuses and Kenya may take countermeasures but Kenya is not allowed to mistreat
Ugandan nationals on its territory.
3) Counter measures may not disregard implications imposed by jus cogens
4) Countermeasures may only target the state responsible for an international
wrongful act and must not breach the rights of 3rd states, who have nothing to do
with the dispute.
5) Counter measures must not be out of proportion with the breach by the delinquent
state. In other words the counter measures must be balanced against the injury
caused by the wrong doing state.
Article 22 of the ILDCA provides that the wrongfulness of an act of a state not in
conformity to an international obligation towards another state is precluded if and
to the extent that the act constitutes a counter measure taken against the latter state.
Article 49 through 54 thenprovides for the conditions of and limitations to which
counter measures are subject.
Closely related to but different from countermeasures is the application of
sanctions authorized by an International or Regional Organization pursuant
to its statutory mandate. Whereas countermeasures are taken by individual
states, sanctions are collective responses undertaken within an institutional
framework.
The imposition of sanctions will not give rise to responsibility for the
resultant loss or damage. Accordingly preventive or enforcement action or
other measures applied by the U.N Organs or by Regional institutions e.g.
AU in conformity with the U.N Charter does not create any responsibility for
the ensuing loss or damage. When UNSC decides to impose sanctions, and
the economy of Iran dwindles, Iran cannot claim any compensation.
4) Force Majeure
Force majeure will preclude the wrongfulness of an act or omission by one state in
violation of its obligation owed to another. Article 23(1) ILCDA defines force majeure as
the occurrence of an irresistible force or of an unforeseen event beyond the control of
the state making it materially impossible in the circumstances to perform the obligation.
Under Paragraph 2 force majeure does not apply if;

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a) The occurrence of force majeure either alone or in combination with other factors is
due to the conduct of the state invoking it
b) If the state has assumed the risk of that occurrence
In state practice force majeure is generally invoked to satisfy involuntary or at least an
intentional conduct and relates to the irresistible force or an unforeseen event against
which the state has no remedy and which makes it “materially impossible” for the state
to act in conformity with its obligations.
The test for applying the doctrine of Force Majure is one of “absolute and material
impossibility” whereas circumstances rendering performance of the obligation more
difficult or burdensome does not constitute such circumstances as to preclude
wrongfulness.

5) Situations of Distress
Under Article 24 of the ILCDA the wrongfulness of an act of a state not in conformity
with the international obligation of that state is precluded if the author of the act in
question has no other reasonable way in a situation of distress of saving the author’s life
or the other lives entrusted to the author’s care.
The article goes on to provide that distress does not apply if
a) The situation of distress results either alone or in combination with other factors
from the conduct of the state invoking it or
b) The act in question was likely to create comparable or greater peril.

6) NECESSITY
It is often asserted that if a state coerced by necessity to save itself from great and
imminent danger which it has not itself induced and which it cannot in any other way
escape takes action violating a right of another state such action does not engage its
international responsibility. The danger is to avoid must be of such a nature as to put on
jeopardy the existence of the state, its territorial or personal statute, its government or
form of government or to limit or even make disappear its independence or
International capacity. A good example would be the state of Maldives (with about
350,000 persons) or Nauru about to sink following climate change – imminent danger of

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disappearance following climate change and rise in sea levels. Would it be against
international responsibility obligations if the 350k persons invaded India? No.
Necessity is defined in Article 25 (1) of the ILCDA as the condition where an otherwise
unlawful act is performed and such act
a) Is the only means for the state to safeguard an essential interest against a grave and
imminent peril
b) Does not seriously impair an essential interest of the state or states towards which
the obligation exists or of the international community as a whole - when the
Maldives migrate to India to a higher altitude, is there non-compliance? After all
what is 350k persons compared to 1.7billion.
Under Paragraph 2 necessity may not be invoked by a state as a ground for precluding
wrongfulness if
a) The international obligation in question excludes the possibility of invoking
necessity or
b) The state has contributed the situation of necessity. See the Neptune Case which is
illustrative of this point.

NEPTUNE CASE
Decided in 1797 by a US-Britain Mixed Commission is illustrative. In 1795, during the Anglo-
French War an American owned vessel, the Neptune loaded with rice and other food stuff under
voyage from US to France, was captured by a British warship and the cargo was taken over for
the British government the owners being allowed the invoice price and a mercantile profit of
10%. The owners claimed before the US-Britain Mixed Commission the difference between
what had thus been paid to them and the price the goods would have fetched at Bordeaux had
they not been seized. Britain claimed inter alia that the seizure was justifies by necessity because
Britain ‘was threatened with scarcity of those items directed to be seized.’

Judge Pinkney, writing as a member of the majority that issued the award, relied for the issue of
necessity upon the opinion of jurists such as Hugo Grotius and admitted that in case of “scarcity
which produces severe national distress or national despondency unless extraordinary measures
are taken to prevent it” a state could be “authorised to have recourse to the forcible seizure of

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provisions belonging to neutrals for averting the calamity it feared.“ However, in the instant
case, the judge dismissed the British argument essentially on two grounds:
a. The evil was only “seen in perspective” in that it was “imaginary” and not “real and
pressing.”
b. No attempt had been made to find other means of supply which were “consistent with the
rights of others” and which were not “incompatible with the exigency”.
See also The 1967 TORREY CANYON CASE

The 1967 TORREY CANYON CASE

A Liberian registered oil tanker carrying approximately 120 000 tonnes of crude oil ran aground
on the high seas off the British coast. The resultant oil spill created an imminent threat of
massive oil pollution on the neighboring British and French coast. Although the ship was
registered in Liberia, this in Law of the Sea was a flag of convenience. The ship had no relation
to Liberia. To avoid any damage to British and French coast and the marine environment and
since salvage operations were hindered by rough seas the UK air-force firebombed the vessel so
as to open the cargo tanks and burn the oil therein. The British authorities invoked necessity to
justify their action. The flag state, Liberia, did not protest.

N/B: The distinction between situations of distress and necessity is that while in the case
of distress the wrongful act is justified by the urgent necessity to save the life of the
person performing the act or the lives of other individuals entrusted to the state,
necessity aims at warranting a breach of International Law imposed by the need to
avert a serious danger for the whole state or the population or part of the population of
the state. Therefore, the case of Jonah in the bible is of distress and not of necessity.
STATE RESPONSIBILTY AND ITS ORGANS
In International law, a state is responsible for the actions of the government, i.e. its legislature,
executive or judiciary, any political subdivision of the state such as a federal unit and any organ,
agency, official employee or other agent of its government or of any subdivision acting within
the scope of their employment.International responsibility is incurred by a state as a result of
either the enactment of legislation incompatible with its international obligations or of the non-
enactment of legislation necessary for implementing those obligations.
The claimant must however establish that damage ensued as a result of the implementation of
the legislation or the failure to legislate. If the Kenyan National Assembly enacts a law contrary
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to International Law rules, it will be liable.A state incurs responsibility for any act contrary to
International law committed by any of the executive or administrative agents or officers of the
state and in particular the head of state, the head of government, a minister, a diplomatic or
consular officer or some other official of the state.
Although independent of the other government organs, the judiciary is not independent of
thestate and is as much a part of the state as are the legislature and the executive when it comes
to International law. Accordingly, the state is as much responsible for acts of judicial organs
contrary to International law as it is the acts of the legislature and the executive. Judicial
decisions which are clearly incompatible with the international law obligations of thestate will
give rise to international responsibility. However, responsibility is not incurred due to a
mistaken application or violation of a rule of domestic law even if such misapplication or
violation results in injury to an alien or a foreign resident.
For state responsibility to arise it is necessary that there be a manifest violation of International
Law. If there is no violation of International law an error of fact or of domestic law on the part
ofthe judiciary is not enough to engage the state’s responsibility. Here there will be room
forappeal and not state to be responsible.
In the case of dependent territories or members states of a federation the protecting power or the
federal state is responsible for the acts of the subordinate unit to the extent to which the latter’s
international personality has ceased to exist. This is because since the protected territory is
unable to act without an intermediary on the international level, the responsibility ofthe
protecting state is based on the fact that it is that state alone which represents the protected
territory in international affairs. Similarly, a state is responsible for the acts of self governing
units if the acts are committed by those units in exercise of their republic functions. For instance,
county governments are not international persons so they cannot sign agreements with other
states on behalf of Kenya. United State of Tanzania will be responsible for acts of Zanzibar or
Pemba.
Were these otherwise, states could evade some of their international obligations by shielding
behind divisions created under their public laws.

NATURE AND EXTENT OF REPARATION

A state discharges the responsibility incumbent upon it for breach of an international obligation
by making good i.e. by giving reparations for injury caused or damage caused.

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Article34 of International Law Commission Draft Articles enunciates the principle that a
delinquentstate must make full reparation for injury or damage caused by commission of an
internationally wrongful act. Reparation may take the form of restitution, compensation
(indemnity), or satisfaction eithersingly or in combination. The choice of a particular form of
reparation varies depending upon the content of a particular obligationbreached and nature of
injury sustained.The basic rules on this subject of reparation were enunciated by the Permanent
Court of International Justice in theChorzow Factory Case (Indemnity) (Merit) (1928) PCIJ
Rep. Series A, No.17. CASE involving a claim of Germany against Poland arising out of the
expropriation of a factory at Chorzow by Poland contrary to the 1922 Convention between
Germany and Poland on Upper Silesia, the court stated, “It is a principle of International Law
that the breach of an engagement involves an obligation to make reparation in an adequate
form.The essential principle contained in the actual notion of an illegal act...is that reparation
must, as far as possible wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed.
Restitution in kind, or, if this is not possible, payment of a sum corresponding to a value which
restitution would bear; the award if need be, of damages for loss sustained which would not be
covered by restitution in kind or payment in place of it –such are the principles which should
serve to determine the amount of compensation due for an act contrary to International law”.
Under Article.39 of the ILCDA in the determination of reparation, account must be taken of the
contribution to the injury by the willful or negligent action or omission of the injured state or
anyperson or entity in relation to whom reparation is sought.
Reparation can take any of the following Three forms in International law
a) Restitution
b) Compensation (Indemnity)
c) Satisfaction
1. RESTITUTION:
Restitution may take the form of legal restitution or restitution in kind or restitution inintegrum.
Legal restitution consists of a declaration that an offending act of the executive, judiciary or
legislature is invalid. Legal restitution can be considered as restitution in integrum or as a kind
of satisfaction although it is rare in practice.Restitution in kind is the primary remedy at
international law. It is designed to re-establish the situation which would have existed if the
wrongful act or omission had not taken place by performance of the obligation which the state
concerned failed to discharge, revocation of the wrongful act or abstention from further wrongful

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conduct. Restitution has been decreed by international arbitral tribunals in cases where there
wasan agreement between the two parties either for the purposes of a particular case or generally.
For instance:
In the Norwegian Shipowners Claim
The arbitral tribunal stated that just compensation implied a full/ complete restitution of the
status quo ante based on the loss of profits incurred by the Norwegians as compared with other
owners of similar property.
Norwegian Ship-owners Claim (Norway v. United States) (1921) 1 R.I.A.A. 307 .
By an act of congress approved on June 15th 1917, all ships over 2 500 tons, material contracts,
plans and specifications in the US shipyards were requisitioned. Due compensation was to be
made by the U.S. Contracts for the construction of 15 ships were made subject of the claims by
their Norwegians against the US Shipping Board. Norway and the US agreed to submit the
claims to an arbitral tribunal authorised by the compromis to decide in accordance with the
principles of law and equity. At the date of the requisition, only two keels had been laid and
material for a third delivered. The U.S took these over and the shipyards were prohibited from
doing any work except for the U.S government.
The tribunal recognised the right of the U.S to requisition neutral property but recognised that the
requisition affected the contract as well as the physical property.

It held that the U.S was under the duty to make just compensation to the claimants. Fifteen
Norwegian ship owners placed contracts for the building of ships in U.S. shipyards. After the
United States declared war on Germany on 6 April 1917, the United States requisitioned the
Norwegian shipowners’ property. Negotiations between the United States and Norway failed to
lead to a settlement of the claims for compensation presented by Norway on behalf of the
shipowners, and by an Agreement signed on 13 June 1921 (14 L.N.T.S. 20) they referred the
dispute to a tribunal of the Permanent Court of Arbitration for decision in accordance with the
principles of law and equity. Held that the United States must pay compensation to Norway.
The claimants were deprived of their property by a requisition in exercise of the power of
eminent domain (the power of the State to take property within its jurisdiction which may be
required for the public good); while the tribunal could not disregard the municipal law of the
parties (unless it was contrary to the equality of the parties or to principles of justice common to
all civilized nations) which had been accepted by foreign nationals in their private dealings, the
tribunal was not governed by that law, but could examine it for consistency with the equality of

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the parties, treaties binding the party in question, well-established principles of international law,
including customary law, and the practice of judges of international courts; under U.S. law, as
well as under international law, just compensation was due to the claimants based upon respect
for private property, and providing such compensation was paid without undue delay the United
States was entitled to take the claimants’ property for the duration of the special war emergency;
just compensation implied a complete restitution of the status quo ante based upon loss of profits
of the Norwegian owners as compared with other owners of similar property and compensation
was accordingly awarded on the basis of the fair market value of the claimants’ property.READ
THIS CASE.

Article.35 of the International Law Commission Draft Articles provides that a state
responsible for an internationally wrongful act is under an obligation to make restitution that is to
re-establish the situation which existed before the wrongful act was committed provided and to
the extent that restitution:
a.is not materially impossible
b. it does not involve a burden out of all proportion to the benefit deriving restitution instead
of compensation.

See also : The Temple Of Preah Vihear (Cambodia V Thailand) 1962 ICJ Rep.6
The case involves a boundary between the two countries. Thailand because of the dispute
between the two, decided to carry out religious objects from the temple, which was on the
boundary. After determination, ICJ told Thailand to return the objects to Cambodia since the
temple was found to be on Cambodia’s side.
See also the Chorzow Factory Case as discussed above.

2. COMPENSATION OR INDEMNITY
The PCIJ stated in the Chorzow Factory Case that it is a principle of international law that
thereparation of a wrong may consist of an indemnity (compensation). This is the most frequent
form of reparation. This compensation is measured by pecuniary standards (monetary
standards). The fact that indemnity presupposes the payment of a sum corresponding to the value
which restitution in kind would bear has important effect on its extent.As a consequence of the
depreciation of currencies and of delays involved in the administrationof justice, the value of a

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property compensated may be higher at the time of the decision of the tribunal than at the time of
the wrongful act.
Example in the Norwegian Ship-owners Claim : The US requisitioned ships in 1917; obviously,
the owners are not compensated on the same date. ICJ will take into account the depreciation
of the currencies and the appreciation of the properties in order to determine compensation,
say 20 years down the line.
Since monetary compensation must as far as possible resemble restitution the value of
theproperty at the date when the compensation is paid is the criterion. Further, under this
principle, the party injured by the wrongful act may in appropriate cases claim for lost profits on
the basis that just compensation implies a complete restitution of the status quo ante – the
previously existing state of affairs. Interest as well as loss of use of that sum during the period
within which the payment continues to be withheld is payable.
Article.36 of the International Law Commission Draft Articles provides that compensation
must cover any financially assessable damage and if applicable, any loss of profit.
Article.38 provides important clarifications in respect of interest:
a.) States that any interest on any principal sum shall be payable when necessary in order to
ensure full reparation. The interest rate and mode of calculation shall be set in order to achieve
that result.
b.) The Articles specifies that interest runs from the date when the principal sum should have
been paid until the date when the obligation to be paid is fulfilled, i.e. until payment in full.
NB -International law does not accept the concept of punitive, vindictive or exemplary damages.

3.SATISFACTION
Satisfaction as a form of reparation is appropriate for non-material damage or moral injury to the
personality of the state – Ethiopian troops into Kenya fire and get back without damaging
anything. They have hurt integrity of Kenya’s sovereignty. Satisfaction differs from restitution in
kind in that it cannot lead to actual restoration of the status quo ante. It’s typical purpose is to
repair breaches of international obligations in cases where such a breach would not entail any
actual damage or in which monetary compensation is either inappropriate or insufficient. The
classical illustration is the:I Am Alone Case (Canada v US) 1935 3 RIAA 1609 .
I Am Alone Case (Canada v US) 1935 3 RIAA 1609 .
This was a claim referred to the Commission established under the Pecuniary Claims Agreement

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between Great Britain and the United States of 18 August 1910 pursuant to Article. 4 of the
Anglo-American Liquor Treaty of 23 January 1924: 27 L.N.T.S. 182.
It arose out of the sinking of the I Am Alone, a British vessel of Canadian registry, summoned to
stop while engaged in smuggling liquor into the United States at a point outside U.S. territorial
waters but apparently within the one-hour steaming zone designated by Article 2 of the 1924
Convention as one within which Great Britain would raise no objection to examination of vessels
on suspicion of violation of the U.S. liquor laws. Having refused to stop, the vessel was
eventually sunk upon the high seas by a sister vessel of the coastguard cutter which originally
hailed her.
On 7 January 1935, the Commission held that the sinking was not justified either by the terms of
the Convention or by general international law. Even assuming that the United States was
entitled to exercise the right of hot pursuit (upon which question the Commissioners did not,
apparently, declare themselves;), the intentional sinking of the vessel went beyond the exercise
of necessary and reasonable force for the purpose of her apprehension.
In consequence, the Commission recommended that the United States should formally
acknowledge the illegality of the sinking and pay the Government of Canada $25,000 ‘as a
material amend in respect of the wrong’; further, that the United States should pay certain sums
for the benefit of the captain and crew, who were not implicated in the conspiracy to smuggle
liquor into the United States; but that no compensation ought to be paid in respect of the loss of
the ship or cargo because, although a British ship, she was de facto owned, controlled, and at the
critical time managed and her movements directed and her cargo dealt with and disposed of ‘by a
group of persons acting in concert who were entirely, or nearly so, citizens of the United States’.
The ship was sighted by US Coast Guard Vessel Wolcott in March about 10.5 miles off the coast
of Louisiana but within one hour’s sailing distance from shore. The Wolcott hailed the I Am
Alone to stop but she ignored the signal to heed to stop for boarding an examination in
accordance with the 1922 US tariff Act and the 1924 Anglo-American Convention on
Intoxicating Liqours and sailed to sea. Under this convention, Great Britain agreed to raise no
objection to the hoarding of private vessels outside the limits of the territorial waters by the US
in order to check for smuggled goods even when with a UK flag. The Wolcott fired at the I Am
Alone but was unable to stop her since the gun jammed. The I Am Alone fled pursued by the
Wolcott and a second patrol boat the Dexter which joined in the pursuit. The Dexter overhauled
the I Am Alone on March 22, about 200 miles into sea and asked to stop but she refused. The
Dexter fired and the I Am Alone sunk as a result with all but one person on board being rescued.

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The resultant dispute was referred by two commissioners one appointed by Canada and the other
US. They found the sinking unlawful since you arrest and detain it and bring into port but stated
since the vessel was de facto owned by US citizens no compensation ought to be paid on behalf
of the ship and cargo. However, the commissioners considered the US ought to formally
acknowledge the illegality of its act and apologize to the Canadian government and pay
USD2500 to the Canadian government as material compensation for insulting the flag.
NOTE
In contemporary law and practice satisfaction is limited to presentation of official regrets
andpublic apologies or other acknowledgment of wrongdoing and an undertaking to
punishindividuals responsible for the act and the taking of measures to prevent recurrence of
thewrong.Article. 37 of the International Law Commission Draft articles provides that
satisfaction may be given as a remedy for an internationally wrongful act which cannot be made
good by restitution or compensation. Satisfaction may consist of an acknowledgment of the
breach, an expression of regret, a formal apology or another appropriate modality.
Further, according to the article, satisfaction should not be out of proportion to the injury
suffered andshould not take a form that is humiliating to the delinquent state.

READ - Treatment of aliens or foreigners – Under State Responsibility

National Treatment Standards. Should there be a minimum for foreigners or should we

treat them better than locals? Disputes can move from a private citizen to municipal law
to an IL dispute.
Calvo clause – china wuyi with a contract with Kenyan government. Pipeline of turkey.

A distinct and separate aspect of a states international responsibility relates to the

treatment of foreign nationals by the host state. This is a controversial subject that is
highlighted on the lack of consensus in the standard of treatment of foreign nationals.
The economically developed state of Northern America and Western Europe have
insisted that there is an international minimum standard for treatment that must be
accorded to foreign nationals by all states irrespective of how they treat their own
nationals.

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The newer and developing states insist on the other hand that foreign nationals may
only insist upon national treatment” i.e. treatment equal to that given by the state
concerned to its own nationals. The main justification for granting foreign nationals
equality of treatment under the local law is founded on territorial sovereignty in that to
give the foreign national a special status would be contrary to the principles of
territorial jurisdiction and equality of states and by residing in the particular state the
foreign national is deemed to have submitted to both benefits and burdens incidental to
residents in that state.
The national standard of treatment and the international minimum standard of
treatment reflect conflicting economic and political interests.
However, whether it is the national standard of treatment or the international minimum
standard that applies state practice and judicial decisions show that in order to
constitute an international delinquency there by involving the responsibility of the state,
the treatment of a foreign national must amount to an outrage to bad faith to willful
neglect of duty or to an insufficiency of governmental action so far short of international
standards that every reasonable and impartial man or woman would greatly recognize
its insufficiency.
As a general rule every state is under an international obligation not to ill treat foreign
nationals present in its territory. If the state violates this obligation in any way it may
incur international responsibility in the state of which the foreigner is a national.

Ill treatment of foreign nationals giving rise to international responsibility may result
for instance from unlawful expropriation of foreign owned property, failure to punish
individuals responsible for attack on foreign nationals or denial of justice such as a
refusal to afford a foreign national a right to be heard or arbitrariness or unfairness in
judicial proceedings in which the foreign national is a resident.
Under international law every state has the right of diplomatic protection of its
nationals injured at the hands of another state. Injury to a citizen is injury to the state
of which he is a national. The state has a legal interest in its citizens and in protecting
this interest the state may call to account those harming its citizens.

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This means that when a national suffers an injury at the hands of another state his state
of nationality may take up the claims as its own.
There are 3 principles that govern claims by state for violation of the rights of their
nationals by other states
1) Requirement of the espousal of private claims by a state.
Under this principle a state is entitled to espouse the claims of its national against
another state from which the national has been unable to obtain satisfaction through the
ordinary channels. By taking up the case of its national and by resorting to diplomatic
channels or presenting a claim to the international plane the state is in reality asserting
its own right to ensure in the person of its national respect for the rules of international
law. This principle was stated by P.C.I.J in the:
Mavromattes Palestine Concessions case(Greek vs U.K)
In which it stated ” ...it is an elementary principle of international law that a state is entitled
to protect its subjects, when injured by acts contrary to international law committed by
another state from whom they have been unable to obtain satisfaction through the ordinary
channels. By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceeding on his behalf a state is in reality is asserting its own right to
ensure, in the person of its subject, respect for the rules of international law.”

2) The state espousing the claim must be the state of nationality of the foreign
national
Oppenheim states this principle as follows “...from the time of the occurrence of the injury
until the making of the award the claim must be continuously and without interruption have
belonged to a person or to a series of persons :A. Having the nationality of the state by whom
it is put forwards and B. Not having nationality of the state against whom it is put forward.”
Nationality is a vital concept in this area of responsibility. The right of a state to espouse
private claims is limited to intervention on behalf of its own nationals because in the
absence of a special agreement it is the bond of nationality between the state and the
individual which alone confers upon the state the right to exercise diplomatic
protection.
It is as a part of the function of diplomatic protection that the right to take up a claim and

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ensure respect for the rules of international law is exercised by the state. Where the injury has
been done to the national of some other state, no claim to which such injury may give rise falls
within the scope of diplomatic relations which the state is entitled to espouse. If you are not a
Kenyan and you suffer harm under Uganda, you cannot ask Kenya to exercise diplomatic
protection on your behalf.
Where the individual is a national of more than one state the test applicable is that of
“dominant nationality”, i.e. the nationality of the state with which the individual has an effective
or genuine link.
This is illustrated by the Nottebohm Case
Nottebohm Case (Leichtenstein vs Guatemala) 1955 ICJ Rep. 4.
Where the ICJ held that a state cannot espouse a claim on behalf of a person who has its
nationality but has no real and effective link with that state at least if that claim is against that
other state with which he does have such link.
This case is a dispute between Liechtenstein and Guatemala. It is based on the actual relation,
interest and position of individual to his national state in the case of international protection.
Mr. Friedrich Nottebohm was born as a German national. In 1905 he went to the Guatemala,
where he started his own successful business. In 1939 he applied for naturalization in
Liechtenstein. In the same year he paid all the fees and taxes, including security deposit (that was
about 68 500 Swiss francs.

On the 13th of October 1939 Mr. Nottebohm was naturalized by the Certificate for Nationality
produced by a Supreme Resolution of the Prince. Then he obtained the Liechtenstein Passport
and went to the Guatemala to continue in his business activities. Till 1943 he had fixed abode in
Guatemala.
When, on the 17th December 1951 Liechtenstein filed an Application against Guatemala, it
claimed damages in respect of various measures which Guatemala had taken against the person
and property of Mr. Nottebohm. Firstly, Guatemala contended that the court is without
jurisdiction. The Court decided to reject the preliminary objection to its jurisdiction. Then started
the main process. Liechtenstein claimed restitution and compensation on the ground that the
Government of Guatemala had acted towards Mr. Nottebohm, a citizen of Liechtenstein, in a
manner contrary to international law.
Guatemala contended that the claim was inadmissible, for example, of nationality of Mr.
Nottebohm. The Court had to deal with the question without consideration of the validity of

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Nottebohm’s naturalization according to the Law of Liechtenstein. Nationality itself is within the
domestic jurisdiction of the State. The exercise of State’s domestic jurisdiction does not have
automatic international effect.
The problem is real and effective nationality that is, based on strong factual ties between the
person and the State. Other problem is habitual residence of the individual and the centre of his
interests, his family ties, his participation in public life, attachment shown by him for a country
etc. Nationality, in the case of protection has to correspond with the factual situation. The
individual has to be closely connected with the population of a particular State.
At the time of naturalization Mr. Nottebohm had his family, business connections and interest in
Germany, so the application for naturalization in Liechtenstein was not motivated by the desire
to dissociate himself from the Government of his country. Other thing is that he had been settled
for 34 years in Guatemala where he stayed until removal as a result of war measures in 1943 and
Guatemala refused to readmit him. Nottebohm started to live in Liechtenstein, because
Guatemala refused to admit him. The naturalization was not based on any real prior connection
with Liechtenstein. The naturalization was not for obtaining a legal recognition and become a
part of Liechtenstein population. Because of all these reasons the claim of Liechtenstein was
inadmissible.

With respect to the application of the nationality of rules claim to corporations the ICJ in the
Barcelona Traction Case
The ICJ rejected Belgium’s capacity to espouse a claim on behalf of its nationals who were
shareholders in a Canadian company holding that the right of diplomatic protection extends to
wrongs done to companies which have the nationality of the protecting state and that in principle
it is only in special circumstances that international law permit any ‘piercing of the corporate
veil’ so as to permit a state to protect its national shareholders in a foreign company in respect of
the loss they suffer because of the situation of the company.
The court stated, ”Where it is a question of an unlawful act committed against a company
representing foreign capital, the general rule of international law authorises the national state of
the company alone to make the claim.”
However in three instances, the national state of the shareholders will be entitled to assert a
claim for diplomatic protection that is if:
a. )The alleged wrong was directed against the shareholders by reason of their nationality.

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In Barcelona Traction case, the Spanish, it was said, did not target the Belgian nationals
even though the company was Belgian-owned. They had caused harm not to the
shareholders but to the company as a distinct company.
b. )The company has ceased to exist and shareholders of the state are affected.
c.) The national state of the company lacks capacity to bring/espouse an international
claim. The lack of capacity could be due to the presence of an agreement between the
states. I.E that in the event of an injury to the nationals the UK will come to their aid,
then Kenya is said to have ceded this power to the UK and when the injury occurs,
Kenya can do nothing.

3) Measure of reparation
In the Chorzow Case the PICJ held that, “it is a principle of IL that the breach of an
international engagement involves an obligation to make reparation in an adequate
form. This principle has not only been reaffirmed in subsequent international decisions
but it is also reiterated under art 36 of the Statutes of International Court of Justice
which gives the court jurisdiction in all legal disputes concerning inter alia “ the nature
and extent of the reparation to be made of an international obligation.”
Even as a general rule where any tribunal has jurisdiction to determine a dispute it has
jurisdiction also to determine the nature and measure of reparations.
In the indemnity phase of the Chorzow Factory Case the PCIJ stated this principle as follows:
“It is a principle of international law that the reparation of a wrong may consist in an indemnity
corresponding to the damage which the nationals of the injured state have suffered as a result of
the act which is contrary to international law. The reparation due by one state to another does
not, however, change its character by reason of the fact that it takes the form of an indemnity for
the calculation of which damage suffered by a private person is taken as the measure. The rules

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of law governing the reparations are the rules of international law in force between the two states
concerned and not the law governing relations between the state that commits the act and the
individual who suffers the damage.
Rights or interests of an individual, the violation of which rights causes damage are always in a
different plane to rights belonging to a state, which rights may also be infringed by the same act.
The damage suffered by an individual is therefore never identical to that which is suffered by a
state; it can only afford a convenient scale for the calculation of the reparation due to the state.”

 For example The ICJ, for instance, can’t look at the contract between China Wu Yi and
Kenya, it will apply international rules. The claim ceases to be a private claim once it is
taken to the international court .

The local remedies rule

An injured foreign national will not automatically entitled to invoke the diplomatic
protection of his state of nationality. He must first seek redress from the state which has
caused him injury in accordance with that states domestic legal machinery and only
when adequate redress is not forthcoming may the state of his nationality seek redress
on his behalf. Action by a state of nationality will in the first place usually take the form
of reparations and negotiations through diplomatic channels. If this does not result in a
satisfactory settlement the injured state may take the matter up more formally by
presenting an international claim against the another states.
The rule is not relevant to complains based on a direct breach of IL which causes
immediate injury to another state and in which that state is not complaining of an injury
to one of its nationals. This is because states are not subject to the jurisdiction of foreign
courts so that direct breaches of IL cannot be subjected to adjudication by the
jurisdiction of municipal courts of the offending state.
The foundation of the rule is the respect for the sovereignty and jurisdiction of the state
competent to deal with the question of claim through its judicial organs. This respect is

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brought about by giving priority to the jurisdiction of the local court of the state in the
case of foreigners.
The justification for the rule is several-fold:
a) An alien resident (here China Wu Yi) in a state should have recourse to local courts before
seeking external assistance from his state if the legal system is to function properly.
b) A state must be given the opportunity to redress by its own means and within its own legal
framework any wrong suffered by an alien before being made internationally responsible. Kenya
be given opportunity to do this before the wrong suffered by WU YI is made international.
c) In cases where the international obligation requires a state to achieve a certain result the
definitive failure to achieve that result and hence the breach of the obligation is not established
until procedures for rectifying ab inito failures have been resorted to and have failed.
d) Until local remedies have been exhausted justice has not been definitely denied. Until China
WU Yi goes up to the last court, can they say they have been denied justice.
e) The nature and extent of damage suffered by an alien and thus the basis for his state’s
international claim is not certain until local remedies have been exhausted.
f) There is considerable convenience in local courts conducting the initial investigation and
adjudication of the matter and should have the opportunity to do so up to the highest level.
In order to exhaust local remedies the private claimant must have recourse to the entire system
of legal protection as established by corpus of Municipal Law and must be given the opportunity
to adduce before the domestic tribunals all the material evidence reasonably available to him
which might be essential for the winning of his case.
Where he omits or fails to put forward necessary contentions or essential evidence the
respondent state may object that the local remedies have not been exhausted.
See Ambatielos Arbitration Case (Greece v UK) 12 RIAA 83,
As indicated by Ambatielos Arbitration Case (Greece v UK) Local remedies are not exhausted if
an appeal to a higher court is not definitely pressed or proceeded with or if essential evidence
has not been adduced or if there has been a significant failure to take some step necessary to
succeed in the action. In this case the Arbitral Commission said: “The rule requires that local
remedies shall have been exhausted before an international action can be brought. These local
remedies include not only reference to the courts and tribunals but also the use of the procedural
facilities which municipal law makes available to litigants before such courts and tribunals. It is
the whole system of legal protection, as provided by municipal law, which must have been put to

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the test before a state as the protector of its nationals, can prosecute the claim on the
international plane.”
There can be no failure to exhaust remedies where there are none.
It is for the state that the local remedies have not been exhausted to demonstrate that such
remedies do exist and if they are shown to exist it is for the opposing party to show that they
were either exhausted or were inappropriate for the subject matter for the claim.
However the requirement to exhaust local remedies may be dispensed with by treaty but must be
explicitly stated.
There are however certain circumstances in which the rules does not apply.
1) The rule will not apply if in fact there are no available remedies which should have been
pursued.
2) The rule may not be applied by reason of obstacles in the domestic law or procedure. If in the
respondent state there are remedies available but if according to domestic law such remedies
are incapable of affording relief or are inappropriate for the subject matter of the claim then
the obligation to exhaust such remedies will be dispensed with.
Similarly if it is not possible for the superior courts to reverse a decisions of the lower court
because of a procedural or other rule an appeal will not be necessary and in such a case the
local remedies will have been exhausted.
3) The rule cannot be applied where there is some defect in the administration of justice such as
the complete subservience of the judiciary to the executive whose acts are the subject matter
of the complaint or where the judicial tribunal has been appointed under a law annulling the
private rights in issue in the claim.
It is for the state claiming that local remedies have not been exhausted to demonstrate that such
remedies in deed exist. If they are shown to exist, it is for the proposing party to show that they
were exhausted or were inappropriate for the subject matter of the claim. However, the
requirement to exhaust local remedies may be dispensed with by treaty that this must be
explicitly stated.
The calvo clause
It is a stipulation in a concession contract between a foreign national and a government
under which the foreigner agrees not to seek the diplomatic protection of his state of
nationality and submit any matters arising from the contract in the local jurisdiction.
The foreigner undertakes not to call upon his state for protection.

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The object of the clause is to ensure that legal disputes arising out of the contract shall
be referred as municipal court of the state granting the concession or other rights and to
oust the jurisdiction of international tribunals or to prevent any appeal for diplomatic
action of the national state, the individual or company enjoying the concession.

North American Dredging Co. Claim (US v Mexico)

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