International Law Q&A

In international law, sovereignty is a concept that is not subscribed to”. Do you agree?

What is sovereignty?

 Sovereignty refers to the power of countries to govern themselves.

 It is essentially a principle that recognises the rights of states to exercise all powers
conferred to them by their municipal laws without the interference of other states.
 Sovereignty thus implicitly mandates that countries refrain from interfering in the
affairs of other states.
 There are two types of sovereignty, Complete Sovereignty and Limited Sovereignty.
 When answering this question, an intellectually honest answer will accept that
sovereignty neither completely exists nor is completely non-existent. Rather,
sovereignty is limited by the precepts of international law.

Limitations on state sovereignty in international law

1. Exercise the right to protect.

 Recognition of a country’s sovereignty does not mean indifference to its excesses.
 International treaties and conventions such as the United Nations Human Rights
Charter (UNHCR) and the Constitution of the African Union recognise the need to
protect citizens of countries.
 In some instances, the responsibility to protect has been invoked to interfere in
domestic affairs.
 For example, the US fighting against terrorism in North Africa and the Middle East
on the pretext of protecting vulnerable communities.
2. The ICC and ensuring international justice.
 Limitations also exist to ensure international justice.
 This is whereby the ICC and partners rein in states committing crimes against
humanity or war crimes.
 For example, Omar Al-Bashir was convicted of crimes against humanity while still
ruling Sudan. This was a limitation on his power to govern.
3. Exercise of soft political power by developed countries.
 Soft power refers to the influence a country has on others without the use of force.
 It is acquired through the size of the country’s economy, the amount of international
aid it disburses, and its historical ties with other countries.
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 Developed countries exercise soft political power to influence developing states

dependent on them for aid.
4. Limitations arising from international treaties and conventions (make sure you
distinguish this from point 1)
 States voluntarily sign off on international treaties and conventions to which they are
bound.
 For example, countries are bound by the United Nations Framework Convention on
Climate Change and the Glasglow Pact to reduce global warming.
 These conventions can be used to limit the right of countries to exercise unlimited
autonomy.
5. Right to self-defence.
 States have invoked their right to self-defence to limit other states’ sovereignty.
 For example, Russia claims Ukraine should not join NATO as it threatens its national
security.
6. Interference by invitation
 States can also be invited to interfere in other states.
 For example, Mozambique consented to SADC members assisting in their fight
against Islamist insurgents in Cabo Delgado.
 Zimbabwe also invited Thabo Mbeki to interfere in an internal political strife in 2008.
7. Abuse of power by some states
 States such as China bully others.
 China has bullied Taiwan for decades by insisting Taiwan does not join the WHO and
other key institutions.
 China claims that Taiwan is a rebellious province despite Taiwan having the defined
territory, functional government, and ability to enter into agreements that qualify it as
a state.
 The US and Europe have been accused of using sanctions to bully developing
countries.

Where sovereignty exists

1. International treaties and conventions are voluntary.

 Countries volunteer to sign and ratify international agreements.
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 Those who do not consent are not bound by the agreements.

 For example, the US is not a signatory to the Rome Statutes of the ICC of 2002.
 Some African countries also refused to sign the AfCFTA agreement

African criticism of the ICC

Points in support

1. Since 2002, most ICC cases have been against Africans.

 This fact creates the perception that the ICC unduly and unfairly targets African
countries.

Points against

1. Timing of the creation of the ICC

 The Rome Statutes of the ICC are from 2002. The first Prosecutor was appointed in
2002 and had to fully establish the Office of The Prosecutor (OTP) by 2003.
 Coincidentally, in 2002, other regions had less civil wars and political strife than
Africa.
 So, the ICC was formed when most crimes against humanity were being committed in
Africa.
 Follows common sense that it'll seem like Africa is being targeted in prosecutions
because it is doing the most prosecutable shit
2. Africa nearly unanimously approved the very establishment of the ICC because of the
Rwandan genocide and other atrocities in the region
 This means that the ICC is as much Africa's brainchild as it is other countries'
 This is reflected by the fact that Africa has the most ICC members among all the other
continents.
 So, it is illogical to then say the institution Africa itself co-founded is Anti-African.
 More likely that African rulers didn't foresee the institution targeting them too in line
with its founding principles which they agreed to.
3. African states are free to cancel their signatory status to the Rome Statutes of the ICC.
 Other countries like the US have refused to sign the Rome Statutes
 Likewise, African countries are free to denounce their signing of the Statutes.
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 Their continued stay in the jurisdiction shows that, despite protestations, African
states agree the ICC is a necessity.
4. The Responsibility to Protect exercised by the ICC is also reflected in African
agreements.
 The AU constitution clearly states that members must not be indifferent to abuses in
other states in the region.
 People must sometimes be protected, even from their governments, according to this
value shared by the AU.
 It is thus hypocritical to demand that the ICC be indifferent to the abuses in Africa, to
handle Africa with kid gloves.
5. Election of an African President of the ICC.
 In 2018, a Nigerian Judge, Chile Eboe-Osuji, was elected president of the ICC.
 His term ran from 2018 to 2021.
 Although this was the first time since 2002, it shows the meritocracy nature of the
ICC.
6. African representation on the panel of judges.
 The ICC has 18 judges from around the world.
 Currently, 3 judges from Benin, Uganda, and Congo, are serving on the panel of
judges.
 This gives the continent institutional power as it contributes judges to the ICC.
7. Criticism of the ICC is based on the misguided idea of absolute sovereignty
 ICC is accused of interfering in African politics.
 This is through events like the 2 convictions of Oma Al-Bashir for crimes against
humanity and genocide.
 # However, in international law, and common sense, no state has absolute
sovereignty.
 All sovereignty is limited by the responsibility to protect and the right to pre-empt
aggression, etc.
 So, ICC investigations of Africans like Kamaita and Bashir are permissible.

Basis of diplomatic immunity

1. Representation of sending state.

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 Diplomats represent the sending state in the receiving state.

 The Heads of Diplomatic Missions specifically represent the Head of State and the
Minister of Foreign Affairs.
 Arresting, prosecuting or attacking a diplomat is thus tantamount to doing the same
to the sending state.

2. Extraterritoriality

 Embassies are considered part of the soil of the sending state.

 For example, although the US Embassy is in Harare, ZRP has no jurisdiction there
(except in extraordinary circumstances) because the US Embassy is treated as US soil.
 Municipal law thus has limited jurisdiction in diplomatic premises because they are
parts of other states.

3. Functional basis

 Diplomatic missions need to be free from arrest, prosecution or attacks to effectively

execute their functions.
 This especially applies to members of INGOs who, though not representing specific
states, play an important role.
 The Heads of Missions or staff of INGOs (and consuls too) not permanently resident
or citizens of the receiving state have diplomatic rights, although these may be
subjected to limitations as dictated by Municipal law.
 Note that the Head of Mission of INGOs have the same level of immunity as
ambassadors et al.

Types of immunity and privileges

1. Personal inviolability (not having their person/body violated)

 According to the Vienna Convention on Diplomatic Relations of 1961 (yes, I

crammed it), diplomats shall not be detained, handcuffed, etc. except in extraordinary
circumstances.
 The privilege applies to mission staff and family members of diplomats (Grace
invoked this in SA when she was accused of rovaring a maid)
 The person of mission staff permanently resident in the receiving state (Zim citizens
working for US Embassy) only applies to official duties.
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 This privilege does not preclude/prevent the receiving state from exercising its right to
protect its citizens.
 For example, a drunken diplomat aiming a gun at civilians will be stopped.
2. Inviolability of premise.
 The soil of embassies and consuls may be treated as extensions of the sending state.
 Therefore, law enforcement of the receiving state may not enter the premises
forcefully except in special circumstances.

3. Immunity from being a court witness.

 Diplomats are immune from being witnesses in court cases whether it's civil, criminal
or administrative.
 They can however be _invited_ and if they waive their immunity, they can voluntarily
be a witness.

4.. Immunity from taxation and custom duty payments.

 They shan't pay shit.

5. Immunity from inspection of personal baggage or vehicles.

 Vehicles and baggage labelled 'diplomat' shall not be inspected by law enforcement.
 However, limitations may be applied in special situations where they are necessary.

6. Freedom of communication

7. freedom of movement and travel.

8. Right to worship.

Pacific settlement of disputes

● Is concerned with the peaceful/amicable/nonviolent resolution of disputes.

● Has the following methods:

Good offices

● A state, institution or individual respected by both sides is the third party in the dispute.

● The third party convinces the conflicting parties to start negotiating.

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● The third party does NOT participate in negotiations.

● Their job ends the moment the parties decide to negotiate.

Negotiation

● Parties in a dispute discuss solutions to their disputes after deciding to initiate dialogue.

● Negotiation typically includes compromises and concessions in a give and take situation.

● There is no third party in a negotiation.

Mediation

● A third-party act as a _mediator_ which is a go-between for the parties.

● The mediator mostly ensures that the proceedings are peaceful by preventing
misunderstandings between the parties.

● Final decision is made by the parties in a dispute.

Conciliation

● Parties voluntarily approach a conciliator to assist in solving the dispute.

● Final decision is made by the parties in the conflict.

● Conciliator, however, makes recommendations through a non-binding settlement proposal.

Arbitration

● Involves states approaching an institution or individuals to act as an Arbitrator.

● Both sides set the principles upon which a final decision must be based.

● Parties to the dispute then present their cases.

● Arbitrator makes a final binding decision based on the aforesaid principles.

Adjudication

● Parties to a dispute approach a court for settlement of the dispute.

● The process follows existing legal statutes.

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● Both sides present their cases.

● Final binding decision is made by the court.

Principles of environmental law

1. Sustainable development.
 All developmental processes must not compromise the ability of future generations to
meet their needs.
 Development in one state must nor undermine the development in another.
 For example, Zimbabwe must not increase its power generation by overusing the
Zambezi River because Zambia needs it too.
2. Preventing transboundary pollution.
 A state must not pollute others.
 This is especially interesting given thar air pollution is international by virtue of the
mobility of air particles.
 This principle thus calls for the reduction of GHG emissions.
3. Precautionary principle.
 Environmental assessments must be done before any development process to predict
and prevent environmental damage.
 Imposes international standards for environmental protection.
4. Polluter pays principle.
 Countries that pollute the most must pay the most for their damage.
 Also applies to MNCs in other countries who must pay for the damage they cause
to the environment.
 Carbon credits are an interesting way for polluters to pay.
5. Environment as shared resource
 The environment belongs to all of humanity as we all depend on it.
 Oceans, rivers, forests, etc. Are shared resources.
 So, countries’ jurisdiction over the environment is limited by the need to ensure others
can benefit from it.
6. Common but differentiated responsibility.
 All states have a duty to protect the environment.
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 However, because of different levels of culpability in environmental damage and

development levels, countries have different levels of responsibility.
 Developed countries are responsible for more environmental damage and have
financial capacity to prevent climate change, mitigate, or do Disaster Risk Reduction
(DRR).
 So, onus is upon them to spend more.

Basis of acquisition of territory

1. Occupation.

 A country that discovers a piece of land previously unoccupied (no man's land) and
occupies can claim rights over it.
 However, said state must effectively occupy the land for it to have full legal rights.
 Effective occupation consists of physically inhabiting and setting up a functional gvt
for a long time.

2. Prescription.

 Where country Dickhead has found Island X but failed to set up a gvt (failed to
effectively occupy), country Dimwit can come in and complete the process.
 Country Dimwit will have legal rights over the territory because it was the first to set
up a gvt (effectively occupy) although it's not the discover.

3. Conquest.

 Countries can claim rights over territories they won in a battle.

 If two countries want a territory, they duke it out and the winner takes all.
 Was especially used before the 2nd World War but is increasingly discouraged now
though Russia is trying to use it.

4. Cession.

 Countries peacefully exchange or transfer territory.

 The territory is ceded to the other country through negotiations or treaties.

4. Referendum
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 A territory votes in a Referendum to become part of another country or form a new

one altogether.
 The results of the Referendum are upheld.

5. Independence and self-determination

 Happens after a new state is formed which is independent from a former larger
whole.
 Said new state claims authority over itself.

6. Claims to colonial boundaries

 Succeeding states of colonial empires can claim ownership of the territories upon
independence.
 Territory once held by the colony continues to be held by the newly independent
state.

7. Avulsion and accretion.

 Natural geographic processes create new territories or shift territorial boundaries.

 Happens through earthquakes, volcanic eruptions or shifts in river channel direction.

Differences between municipal law and international law

1. Universality of laws within area of jurisdiction (equal application of laws)

 Municipal laws such as Constitutions apply to everyone regardless of status.

 International laws don't apply to everyone. For example, acquisition of territories by
force was outlawed by the UNSC resolution 242 recognised inappropriateness of
acquisition of territory by way.
 However, when Russia annexed Crimea, it was not reprimanded by UNSC.

2. Existence of identifiable hierarchy

 In municipal law, the courts are superior to individuals and binding on them all.
 There is also standing police in municipal law enforcement.
 Everyone is bound by the judicial pronouncements
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 International law courts such as the ICC are not superior per se as even after being
convicted of TWO crimes against humanity, Al-Bashir stayed in power.
 There is also no standing police force.
 All states are equal

3. Voluntary nature of laws.

 Citizens don't volunteer to be bound by municipal laws.

 Their existence binds everyone in the jurisdiction.
 International law is voluntary as countries aren't forced to enter treaties or
conventions.

Similarities

1. Principle of protection of human rights.

 Both municipal law and international law are aimed at protecting human rights.
 Municipal constitutions contain Bill of Rights and International Law has treaties like
the UNHCR and the Rome Statutes

2. Existence of deterrents to violations.

 In municipal law, there is sentences, and in International Law, sanctions and force can
be used.
 Both act to deter human rights abuses and other violations.

3. Existence of limitations of powers

 Both Municipal and International Law limit the powers of institutions and individual.
 There is thus a general principle of checks and balances against abuse.

Remaining topics:

Factors determining statehood

International refugee law (rights of refugees)

International humanitarian law

Jus in bello (laws during a war)

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International economic law