Public International Law Lecture Note

A Lecture by:

Instructor Dr. Mizane

Academic Year: 2015/2016

Semester I

Transcribed by: Aklilu Samuel, Eskinder Endashaw and Husen Nasir

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Disclaimer

This material is primarily developed based on the verbalized transcription of the author’s
instructor Dr. Mizane’s lecture on the Public international law (PIL) at AAU. As transcribers, we
would like to assure you that the material in its entirety reflects the instructor’s point of view.
Meaning while we were working on this project as much as possible we have tried our best to
detach and abstain ourselves from using any expression of ours, and also very much careful to
refrain inserting our own subjective belief’s and opinion’s in addition to the core opinion’s
mirrored by the instructor himself. So for that reason hopefully we suppose you will easily figure
it out our painstaking effort to elucidate the overall sprit manifested in the classroom as it
naturally was with a negligible alteration. All the best!!

Aklilu Samuel, Eskinder Endashaw and Husen Nasir

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Introduction to Public international Law

What is international law?

There are a lot of attempts have made to define PIL one of the elementary definition is; as a body
of rules, principles of action which are binding upon civilized states in their relationship with
another states. This is a definition given by beadle. This definition is important with all its
shortcomings. First there is an element which says international law is “binding upon states” so
one of the short coming of this element is that international law is not only there to bound states
but also govern other international actors. PIL impose rights and confer obligations upon various
international organizations, transnational companies etc.

It is true that the primary concern of international law is placing binding obligations on state.
States are the most important subjects of international law. As a name its self’s implies
international law is designed to regulate the relationship between states. Like we mentioned
above it extends its horizon to other subjects of international law, also within that limitation it’s
true that international law is a law binding upon states. It’s defined in terms of rules. So
international law is basically made up of basic rules and principles of conducts.

What are these rules and principles of conducts, from where do we found this rules? The rules in
international law basically arise from treaties, customs or from other sources of international law.

Note: Be mind that under this text or elsewhere the term public international law and
international law are used interchangeably. When we say international law we are referring to
public international law
Classification of International law (IL)

Generally international law is classified into three; (1) Universal international law (2) General
international law (3) Particular international law

What is the basis of such classification?

The names themselves are self-explanatory. Based on the scope of applicability, so universal
international law is part of international law that binds all states of the world. Now this applies
for example in many of the rules of customary international rules they crystalized not to bound a
few states but states of the world in general. Now if you look into rules pertaining to prohibition

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of genocide, apartheid so and so forth this are customary international laws which have universal
relevance and binding effect. On the other hand particular international law as the name implies
is supposed to govern the relationship between two or few state. Egg. A particular Treaty the
other one is general international law; it has wide relevance in which involve majority state of
the world as its parties. This kind of law is not universally applicable but it has a potential to be a
universal international law if the treaties are crystalized into customary international law. This
kind of treaties are available in international human rights law. This is closer to universal
ratification but not universal ratification.

The difference between public international law and private international law.

Both public international law and private international law may apply to foreigner. Individual
can be a subject of both laws.

It is a misnomer to say that private international law (conflict of law) is an “international law”
it’s a domestic law like contract, family law so and so forth, which become applicable when a
foreign element is involved, were there is a dispute between individuals. Public international law
doesn’t apply at any circumstances when there is a dispute between two individuals. Individuals
are becoming subject of international law in regulation to state.

In case of public international law it’s not part of domestic law

There are two areas where individuals are accepted as subject of International law;

For the purpose of protection of human right

International criminal law

In case of PIL it’s not a domestic law in principle it’s not part of a national law rather it’s a
separate regime. Rules of PIL may be part of national law through transformation or through the
principle of direct application or self-execution principle. So generally there is a difference
between the two regimes regarding to its subjects (individuals – conflict law and states – PIL)

The Controversy over the binding nature of International law

One of the ongoing controversies in relation to international law is whether it is actually a law or
not? There are skeptics who still argue that international law is not a law. What are the grounds

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to deny? Why is that suspicion arising? People tend to argue that PIL is not a law basically
arises from the fact that people tries to attribute the characteristics of domestic law to that of
international law. They try to view international law in the lenses of domestic law. So the criteria
they use to ascertain whether international law is a law is by applying the standards and
definitions of domestic law so that is the first problem.

Note: international law is different from domestic law so you cannot judge international law
using the criteria for domestic law. If we did that then such controversy would not arise in the
first place.

What are those criteria’s which are usually raised in international law to conclude that it is not a
law?

First for a law to be a law defined under the domestic law and raised by some scholars
subscribed for positivist school of thought like J. Austin which stipulates that “A law is
command of sovereign enforced by sanction or pain” so for this people for a law to exist three
things must be there; (1) there has to be a central law maker (2) there has to be an institution in
charge of interpretation (courts with different hierarchies with compulsory jurisdiction) (3) there
has to be central executive bodies (law enforcement body) So the idea is that without having
such bodies we cannot say such a set of rules a law.

Why international law did fail to meet these criteria?

General assembly: composed states all over the world, meet once in a year. This organ cannot be
taken as a central law making organ. Which means it does not enact a law and impose it on states
by coming up with legislation and saying you have to be bound. States are not bound by the
resolutions of the general assembly. The UN charter doesn’t allow the mandate of central law
making to this organ. Of course there are areas where the general assembly can pass a resolution
or decision that can bind but this is in a fraction of issues in very limited areas, when compared
to all issues that can be addressed.

Security Council: has the power to take economic as well as other forceful military measures on
state that has violated international law were that particular violation has become a threat to

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international peace and security. But in reality the Security Council is unable to do that simply
because the council is constrained by the veto system.

Courts: there are various courts and tribunals that has international jurisdiction. Be it at global
level and regional level but this courts don not have a mandatory or compulsory jurisdiction it
can apply only when the states agree to submit themselves to the court then the court will have
jurisdiction. In domestic law it’s not an issue whether you consented or not the law will
automatically applicable but that is not the case in international law.

So for this reason because of lack of these elements and because the feature of international law
does not perfectly fit into the definition of law under the positivism school of thought, people
tend to argue that international law is not a law. First it’s a mistake to argue that international law
is not a law because it does not met the requirement of domestic law. Because international law
is different. And we have to deal with it from different perspective. That means the definition
devised by J. Austin is not appropriate to all kinds of law it kind of apply to only domestic law
but definitely it doesn’t apply to international law. So what we are saying in effect is that no
matter how international law doesn’t have all there machineries as domestic law has it can still
be contempted that it is a law. Why?

One point ascertains whether international law is a law or not is …”to view state themselves”
because states are the pre- dominant subject of international law, do states regard international
law as a law? The answer there is no doubt about that they say yes because there is no state in the
world to say that international law is not a law. So if you look at attitude of state then you will
have an understanding that view international law as it is law. If you look at any state including
those violate international law they never denied the fact that international law is a law. What
they do is they try to find the pretext that why they do violate international law. This indicates
there might be a contention regarding interpretation however there is no disagreement as to the
binding nature of international law among states. Note that not only states accept international
law as a law they do also obey it. There are only few cases which indicate that states violate
international law. By the way the fact that a law is violet doesn’t deprive its legal status.

Note: despite lack of central law maker, enforcer and interpreter international law considered
as a law because states themselves view it as a law and they actually abide by it. So sanction

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cannot explain as to why states who abide by international law, sanction are not the only factor
for the enforcement of the law. So the problem of positivism is that it takes sanction as the
only means of enforcement.
If there is no effective sanction element in international law, why does u think states respect
international law?

There are other factors that force states to comply with international law for instance reciprocity
can be mentioned as one. For example; if a given country invades the other will do the same.
Not sanction in a sense J. Austin has envisaged. Again if you have respect international law
especially developing countries you will get benefited from the funding’s of rich nations. So it’s
not punishment in general that motivate or deter a state from observing because as we
mentioned above states are sovereign, independent and free entity it’s through their consent that
they will be bound. No international law can apply on state without its consent. So, consent is the
juridical bases for the binding nature of international law.

One of the unique thing in international law is that the very entity upon which the law applies is
the law maker there is no such trend under domestic law so that make the legal regime
completely weaker compared to domestic law but that doesn’t deprive its legal nature

Note: we have mentioned two core factors that force a state to comply with international law.
(1) Consent: once a state consented it would be a treaty custom it will be binding …based on
the general principle that we call “pacta sunt servanda”. (2) Reciprocity

Note: it’s not entirely wrong to raise a point that international law is not a law but the point is in
support of international law are much do hold more water than the contrary argument.

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Sources of International law

What does it meant by source of law?

When we say source of law generally we have to deal with it from two angles; (1) Formal source
of law (2) material source of law

Formal source of law: refers to the sources from with the law directed its binding action. So
when we talk about formal source of law we are referring to an institution from which the law
emanates. The simple reason that the law is binding is because it’s promulgated by competent
and duly authorized law making organ.

Material sources of law: refers to the document on which the law is found or about sources from
which the law drives its substance or the content. So for example the material sources of
Ethiopian law are very clear. We have constitution, proclamation, regulation, directives and so
forth.

In case of international law it may be relatively difficult to ascertain what are formal sources of
PIL? A sources of domestic law is simple this because of presence of a centralized law making
institution. However international law lacks that.

What are sources of international law?

Treaties, customs, morality in a sense of doing reasonable thing, general principles of

international law, judicial decisions and writings of highly qualified scholars usually mentioned
as a sources of international law.

What is our ground?

Art. 38(1) of the statute of ICJ is the most authoritative, general and enumerative sources with
regard to international law. There is no any other provision other than this article of such
instrument which refers about the sources of international law. Art. 38(2) indicate the possibility
that the principles of morality, equity and reasonableness can also serve as a sources of law.

Note: Statute of ICJ is a treaty; all state parties to the united states charter are ipso facto
members to the statute. So where states are a party to this UN charter then it is automatically a
party to the statute that is provided under Art.93 of the charter. It provides that “All members

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of the united nation are ipso facto members of the statues of an ICJ”

Even though primarily Art.38 (1) of the statute of ICJ is actually meant to apply for ICJ to
resolve a dispute submitted to it. However currently other regional tribunals are using it for
instance; COMESA tribunals.

Article 38

1. The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply;

(a.) international conventions, whether general or particular, establishing rules expressly

recognized by the contesting states;

(b.) International custom, an s evidence o f a general practice accepted as law;

(C.)The genera l principle s o f law recognized by civilizes d nations;

(d.) subject to the provision s o f Article 59, judicial decisions and the teaching so of the most
highly qualified publicists of the various nations, as subsidiary means for the determination of
rules of law.

2. This provision shall not prejudice the power of the Court to decide a case ex aequo ET bono, if
the parties agree thereto.

By virtue of the sub- art 2 of this article the court can apply principle of morality, equity so and
so forth as a source of international law.

Reading assignment:
Is Art.38 of St. ICJ, a complete list of international law?
Is there a hierarchy in regard with source of law? Does it mean that we should disregard other
sources?

Does Article 38 exhaustive or illustrative?

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Meaning is there other sources of international law other than those listed under article.38 of St.
ICJ? Within the meaning of Art.38 basically we found the material elements of international law.
Now the question is are those sources mentioned under this article, are they the only sources? Or
is the listing of sources exhaustive. It seems that this article is exhaustive because it include the
word “shall”, all most all the writers nowadays agreed that Art.38 is not exhaustive its illustrative
to say this they come up with the different reasoning they simply said that Art.38 is an outdated,
old or archaic provision. What make it outdated? Remember art. 38 was a provision found in the
statute of permanent court of international justice. Before the ICJ the judicial organ of the league
of nation was this permanent court of international justice so it mean that this article is as old as
120 years so this article does not reflect the current reality. Saying this so what other potential
sources can be sources of international law? So the idea is that, a lot has happened under
international law after this provision had been crafted including in the issue of source of public
international law. For this reason authors do argue that there are other sources of public
international law, as we will discuss later indeed there are other sources of international law
besides from those listed under Art.38 of the statute of ICJ.

Remember in understanding of law public international law is somehow different from domestic
or national law. We need to understand law in its loose sense. For the teacher the law in
international law is like simply something that shapes the behavior of international actors. To be
recognized as a law it didn’t necessarily have to come out from a central lawmaking institution,
it does not at all require there has to be coherent and effective enforcement and interpretative
body so and so forth. So what matters under international law As long as it shapes it structures
the behavior is in question in these case subject of international law. He also believes the same
has to apply to domestic law.

Hierarchy of Sources of international law (IL)

Generally it’s possible to say treaties and customs comes first, second general principles of the
law, third comes judicial decisions and writings of scholars. What are the bases to say that
treaties and custom are higher in hierarchy compared to the other sources? As we know the
general principles of law is designed to fill a gap so it has a gap filling mission. So we cannot
apply this general principle in the face of treaty or custom governing the relationship and
practice of individual parties in dispute. The former three sources of IL are primary sources. As a

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subsidiary sources of IL judicial decisions and writings of scholars. The purpose of the latter two
sources is basically it’s not as a source but verification of the existing rules i.e. they are basically
evidence existence of custom and treaty. They are not strictly speaking source of public
international law.

Remember: Under international laws the principle of “steer deciss “doesn’t apply so a decision
passed by the court cannot apply a binding obligation. So it’s pretty with the position held by
the proponents of the civil law legal system.
So again the first three sources are called law creating process and the latter two are regarded as
law determining agents.

Is there a hierarchy between treaties and customs?

There is variation among scholars about the hierarchy these two sources, some authors who
argue that whenever there is a treaty the treaty has to be applied. Regarding this issue there are
two views; one view is that there is a hierarchy, treaties prevail over custom. What are their
reasons? The reasons are the following; they say based on the list of Art.38 the source are
enumerated in accordance with their importance, so it mean that treaties are listed in the first
because it has more important than the other sources so, one argument is based on importance.
Second argument is more of pragmatic in a sense they say that treaties made to be more specific
and clearer than custom. Because, they are systematically formulated in terms of creating rights
obligations. For that reason they argue that they should have been held in hierarchical position
better than custom.

The position is that they don’t have hierarchy or they have the same hierarchy so it’s not possible
to foot treaties over customary international law. The basic argument is that; both treaties and
customs are manifestations of the consent of states so in both treaties and customs a state is
bound by its consent so the argument is that as long as both are the expression of state consent
it’s difficult to place them in hierarchy. Of course when there is a conflict between these two
sources we have to apply the rules of interpretation for example; the latest custom or treaty
prevail over the previous so and so forth. The same interpretation principle applies upon the
VCLT.

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Even the fact that both are the expression of the consent of state it very difficult to put them on
the hierarchy. But the exception is that there are certain customary rules which have a higher
status which cannot be overridden by the treaty they are always higher. They prevail over other
customs because the recent custom should not be formulated in a manner that contradicts a
former custom having a higher status. So it’s similar to a few like constitutional provisions. Once
the constitution is promulgated the law maker will enact law based on it each year. Each year’s
comes you will see a new regulations, proclamations but all those regulations and constitutions
should not contravene with the constitution those laws shall have no effect. The fate of treaties
that contravene with the higher custom or higher norm is similar to that of domestic law. See
Art.53 of the Vienna convention

Peremptory norms of IL (jus cogens) are norms as defined under Art.53 of the VCLT accepted
as a norm which can be changed by the norms or rules having the same status. For example
provision on use of force, aggression, issue of human right law.

(1)Treaties as a source of international law

What makes treaties special?

Treaties are deliberate, which compromise various interests, so they are more deliberate.
Currently treaties have begun to replace customary international law. Although both custom and
treaties are supported by countries consent in case of treaties the consent is more of express in
case of custom it is tacit.

There are two dichotomies of treaties; law making treaties and contractual treaties.

Treaties are like a contract because they bind parties thereof by creating a state obligation
among them.

(2) Customary as a source of international law: as a second source of international law as we

know the role of custom at international level is decreasing. Custom is the source of law not only
international law. Furthermore the role of custom within domestic law is dramatically
decreasing. Comparatively speaking its importance is decreasing at international level.

Why custom is still relevant at international level but less relevant in domestic law?

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Because in international law for lack of central mandated body for law making and you can’t
formulate a treaty for everything in addition to that because of the peculiar arrangement of
international law treaties cannot be put into operation over the night for that reason custom can
be relevant.

How can we define custom or customary international law?

It is simply a practice followed by those involved because they feel legally obliged to behave in
such a way. So customary international law (CIL) can be defined as a practice followed by states
because they feel that is legally obligatory to do that. We identify two important elements for this
definition; (1) there has to be a party similar to custom under domestic law or there has to be
similar state practice (2) there has to be a belief that there is a legally obligatory.

Note: a certain behavior will be crystalized into custom if that state acting in such way
believing that, it has an obligation to do so. However this doesn’t mean that things have done
out of convenience, friendship other than believing on its binding character cannot be
considered as custom. Also remember that a customary international law may be codified as a
treaty.

To certain practice to crystalize into custom there has to be a feeling that noncompliance would
produce or entail a legal consequence. [Read an example provided in the teaching material]

An elements need to be fulfilled in order to qualify a certain practice into a custom is; (1)
material element: the fact that there has to be a state practice (2) opinio juris (physiological
element) analogues to moral element under the criminal law.

A state practice: include any actual act or failure to act or a certain behavior or articulation so
and so forth. So how can we get evidence to a state practice? (a) A treaty may be an evidence of
the existence of a state practice. (b) Court decisions (c) diplomatic correspondence (d) opinions
of national legal advisers and opinions of senior government officials. Any documents any
articulations as long as it shows that a state has consistently engaged in a certain practice. There
are too many questions to be regarding to the ascertainment raised like the time element,
consistency, duration; generality and extensiveness of the state practice and the like.

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A state’s failure to practice or participate in the development of certain custom cannot prevent a
state from being bound by the developed rules of customary international law. That means
Acqusiance or remains dormant amounts to acceptance. So only the persistent objector that
cannot be bound by rules of international law. For this end two conditions has to be satisfied; (1)
the objection has to start from the beginning from the early stage of the development of the
practice not the customary law because once the practice is established to be a customary law its
binding like a treaty its no longer a practice, uses or a comity it turned into a binding law. So the
objection has to be performed before at the very beginning the state practice has established
before it turns out to be a customary international law. So generally objection has to be raised as
early as possible. The objection has to be raised and invoked consistently within a given period
of time. In other words it mean if a state in certain points participate in that custom and benefit
from it and in other time invoke that she should not be bound.

Note: For a persistent objector to benefit from the objection two criteria need to be fulfilled;
(1) the objection has to be raised as early as possible (2) the objection has to be consistent.

Psychological element: is about the physiological conviction that fact that a state has to feel that
the practice in question is legally obligatory. Now the question that could be raised is how could
it be possible to prove that the practice in question is obligatory? The means of prove is similar
to that of the method we used to identify the mental element under criminal law except the fact
that the existence of physiological element is presumed.

(3)General principles of Law recognized by a civilized nation:

The term or the requirement of recognition by a civilized nation recognized is ridicules from
current point of view. Because all the states are deemed to be civilized. What writers prefer
nowadays is that it should be replaced by a general principle recognized general principle by a
peace loving countries. The phrase “peace loving countries” it is a diplomatic term and
inconsonant with the United Nations charter. If u look at Art. 4 of the United Nations charter for
a certain new entity to admitted to the united nation one of the requirement is that of being
“peace loving“.

Note: A general principles of law has a gap filling mission, because the should in anyway able

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to resolve a case even if that kind of dispute in its disposal cannot be covered by a treaty or
custom in which case the court is allowed to resort to the general principle of law.

What are those general principles of law that we used to fill the gap? As to what constitute the
general principle? In fact there are three positions held by various authors writers are divided as
to what should be covered under; (1) some says, general principle should be limited to general
principles of national law. (2) Others contend that it should be general principles of international
law. Art.38 doesn’t indicate that whether that ICJ should confine to national law or international
law. (3) For others say that both. According to the teacher it would be more tenable to uphold
the third position. Why the 3rd? Our purpose is to find a principle that would enable us to fill the
gap, so it means that more broader meaning we give the more we could be able to fill the gap. If
we confined general principles to the national law and if the national principle cannot be apply to
settle the matter the court may find difficult.

Sources of General principles of law

General principles derived from international law: authors who support these options argue that
believes that principles derived either from custom through interpretation by Analogy (2) by
inference of broad principles from specific rules; that could be a custom or a treaty.

General principles derived from Domestic law: according to the writers these are principles
borrowed from all or general principles common to all or almost all legal systems of the world.
So the understanding under this context is that general principles of law provided under art. 38
are principles derived from the common principles that are relevant to almost all legal systems.
So in the second case general principles that are common to all or almost legal systems.

What are those examples of the principles? There are principles derived from both substantive
and procedural laws. Regarding some principles it’s difficult to say they emanates either from
domestic law or international law. For instance the principle of good faith; it is one of the
principles to almost all legal systems. in international law particularly under Art. 2 (4) one of the
principles that guides the existence of legal order to execute international obligation in good
faith. In any case whether we can’t able to trace whether this principle comes from domestic or
international law good faith is the core as deduced. Other additional principles unjust or unlawful

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enrichment, principle of reparation of duty, principle of res judicata, principle of estoppel,
doctrine of proportionality, the right to fair hearing, the exhaustion of local remedies,
prescription, equity, liability for fault so on and so forth.

Estoppel: basically the term refers, to precluding, stopping or preventing something from
happening. Being stopped from changing mind.

Equity: according to Art.38 (2) of St. ICJ equity would come into the picture as a source of
international law where the parties do agree. Under this sub- article the term ex aequo ET bono
is referring to equity.

????What does it mean by Aequeo? ……art.38 (1)???

Note: art.38 (2) talks about the possibility whereby whether parties do agree equity can be
applicable by prevailing over or overriding international custom or treaty. But when equity is
used as a general principle of international law it will only be used as a gap filling rule. So
there is a difference in a position and circumstances under which equity can be applicable.

(3)Judicial decision as a source of international law

Judicial decisions are other sources of international law off course we have said that they are not
sources per-se we said that they are subsidiary sources of international law. They do verify
whether primary sources of international law exist or not. So one of the basic purposes of these
sources of international law is to serve as evidence.

Note: certain treaties may contain vague provisions if we look at international treaties they
may not be as clear, precise and concise as domestic law they are victims of “political
compromise” that applies all most to all international treaty, so there are ideas coming from
different corners and by way of political compromise a certain diplomatic idea may be inserted
so it means that it requires interpretation.
So way that article has been interpreted by a court also adds to the understanding of the scope
and content of that particular provision. Beside that so it means that as a matter of design judicial
decisions are not primary sources of law and they are not source “stricto senso”. And Art.38(1)

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takes a caption on that sense it says that referring to article 59 of the united nations charter,”the
decisions of the court has no binding force except within the parties and with respect of that
particular case.” So when actually 38(1) art refers to art. 59 of UN charter it means that a court
will not be bound by its previous decisions. Put differently it means that the common law
understanding of the binding effect of decisions of the higher courts on lower courts or the same
courts it doesn’t apply here. So a decision is binding only between the parties and only in that
particular case. For instance if we look into various international tribunals including ICJ they are
not supposed to follow their previous decisions. However in reality international courts usually
they follow their past decisions. It’s not obligatory to follow. Why do they do that? May be in
order to achieve consistency and credibility and to avoid accusation of bias international
tribunals do actually refers to previous decisions.

Although judicial decisions are basically meant to verify existing rules some writer do argue that
in reality there are instances judges of the courts will come up with the new rules through
interpretation. Judges are making a law under the guise of interpretation. The judges sometimes
create new rules through interpretation.

Example: that we may find that how the courts brings a new rule in the “fissures case” measure
the parameter for the measurement of a territorial sea. A point of departure to measure the
territorial sea. Another one is “reparation case” and another additional case is “the nottebehm
case” the courts articulation of how the case of multiple nationality is applied.

Which court’s decision will serve as a source of IL?

The agreement is that judicial decision includes a quite variety of judicial decisions of a courts, it
could definitely be the decisions of the ICJ or ICC it could also the decisions of other
international tribunals as per Art.38 (1) (b). But other argues that it should not only limit to
decisions of international tribunals it also extends to decisions of national courts. Now however
writers do suggest that it this does not mean that the decisions of each national courts can be
entertained as per art.38 (1) (b). First we need to see the standing of the court. There are courts
having a high standing and apply a lot of international law. A specific example raised in this
regard is for example the US Supreme Court. The US Supreme court in deciding interstate
dispute that adjudication is similar to interstate dispute.

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(4) The Writing of Scholars

Art. 38(1) (d) it says the teaching of highly qualified publicists of various nations. This very
stringent requirement that do not refer to any ordinary writer or a teacher the standard is very
high. Its referring to other writers whose writing is actually structure state behavior. There are a
lot of writers whose writings and recommendation is accepted and implemented by states. One
important writer is Gracious the praised for the emergence of this international law. That’s he
identified as a father of international law. So writers of his status can have a lot of influence on
how states should behave in international arena.

(5) Other sources of IL

Resolution of the UN: the United Nations has six principal organs the two important organs are
the Security Council and the general assembly. The general assembly has a lot of power and
responsibility in exercising these powers and responsibilities the general assembly passes
decisions, recommendations. These can be taken as a sources of international law on two
grounds; (1) they can be taken as a subsidiary sources of IL in terms of verifying the existing
rules (2) they can be rules in themselves by regulating and dictating on how state should do and
what to do.

What are the decisions? If you look into Art.17 of the UN charter the general assembly of the
United Nations has the power to make a decision on budgetary and financial matters which is
binding on states this decision of the general assembly with financial and budgetary matters is
binding so it is as binding as custom or treaties. So there is no doubt about the decision of the
general assembly as per Art.17 is additional source of law. By the same token the Security
Council passes a resolution based on 7. But there are few occasions whereby this organ passed a
resolution based on chapter 7 which is binding on states. Such resolution based on chapter seven
will pass when we have a serious situation that threaten international peace and security the
Security Council may order states to take measures necessary to avert that endanger the peace
and security by imposing an economic sanction, military, or other necessary measures.

Note: A decision passed by the general assembly under chapter 17 and a resolution of the
security council under chapter 7, this are laws strictly speaking and binding upon sates so we
can take them as a sources of international law.

19
What about the resolution and recommendation of the general assembly and security based on
other provisions? For example the resolution of the general assembly based on art.10 or the
Security Council acting under chapter 6. This is not binding, this is recommendations. Even in
case of resolution they are not binding. So in this case they are not strictly speaking laws but they
are not simply irrelevant documents. So this leads us to the concept of soft law, as we can
categorize such resolutions and recommendations as soft laws. This resolution may take the
form of declarations a lot of declaration may put enforce by the general assembly for example
the UDHR, declaration on human right defenders, some other declaration on environmental law
for example the Rio declaration, the Stockholm declaration so and so forth…as I mentioned
earlier this are not a simple documents although they are not binding. So if they are not laws
stricto senso then what is their importance? One importance of this resolutions is that, they can
serve as evidence state practice.

Note: a resolution and recommendation of the general assembly can have an evidentiary
purpose even if it’s not binding or assumed as a binding law.

When the general assembly endorses a resolution it has its own voting procedure, so the ways the
general assembly votes can be an evidence of the state practice. The General Assembly
consistently and repetitively votes in a certain issue that may amount to certain resolution to be
considered as a state practice. Now the question is how much vote is actually needed? It’s not
clear.

20
The relationship between municipal and international law:

The term “municipal law” is used to refer to national or domestic laws of the state. The question
here will be what exactly is the relationship between these municipal laws and international law.
A state may involve different kinds of law making process. But no matter how the law making
process is different, the state may put in place municipal as well as international law. So, by
interring into the valid agreement with other states, a state could be a party to that treaty and that
treaty will be part and parcel of international law. The same is true when we come to customary
law; the state through its implied consent gave recognition to a binding law. On the one hand, a
state makes international law; a same state has a sovereign power to enact a municipal, domestic
or national law. We need to remember that by the principle of “sovereignty”, the state has
jurisdiction or the regulatory power over properties, things or individuals within its jurisdiction.
So, applying its jurisdictional power or sovereignty, the state can make laws; can apply those
laws that are being made; and can execute those laws.

With regard to establishing the relationship between municipal and international law, there are
various theories developed by authors. Indeed, the theories are different from each other. In the
same school of thought, we see a lot of variations.

If we look at international law books, there are basically three theories:

Dualism: The first theory of the relationship between international law and municipal law is
dualism or dualist school of thought, sometimes called pluralism. This school of thought is
promoted by various authors including Triple and Antidoti. Dualism believes that international
law and municipal law are two separate legal systems which exist independent of each other.
Since they are independently of each other, one cannot claim to have an upper hand over the
other. According to dualism, one regime cannot have superiority over the other. It is clear that
they are different in terms of the subject of the law, substance and sources of the law. That Is
why the subject of international and municipal law are different; the subject of international law
are primarily states, whereas the subject of municipal law are individuals, corporations, etc., but
not states. They are also different in source; the sources of international law are different from
the sources of national law. This school of thought believes that they are also different in terms
of substance or the content of the law; the duty that international and municipal law creates is
different.

21
So, since they are different in terms of substance, source and subject of the law, dualism believes
that international and municipal law are two different legal systems that do not have any
common element and there is no possibility for these two legal systems to conflict with each
other. Since they are distinct, according to dualism, any international law has to be applicable
before domestic forum and every state needs to give permission to that end. It is because;
international law cannot be applicable without the permission of the state. They consider state as
a sovereign entity as consequence of which international rules would be applicable, for instance,
before domestic forums.

Basically, dualism is supported by those who adhered to positivism. It is remembered that

positivism highly focused upon sovereign power. It follows that before international law should
be applicable before domestic courts for other entities that international law should be adopted
by such courts or transformed by local laws. It is clear from this fact that transformation is
required according to dualism for international law to be applicable at domestic level. That is
why some people call this theory “doctrine of transformation”. The change or transformation of
international law in to local laws can happen, according to dualist, either through adoption by
domestic courts or by a specific domestic legislation; a certain domestic legislation should say
that “this international law has been transformed and is now part of a domestic law”.

Monism: The second theory on the relationship between municipal and international law is
monism or monist school of thought. There are renowned proponents of this school including
Kelsen. Note that there are countries that adopt monism, dualism or a mix of the two theories.
So, the experience of countries may not be uniform or may neither hundred percent complied
with monism nor dualism. Countries may follow, for instance, dualism for treaties and monism
for customary law.

Monism, as the name implies, is one distinct school of thought. Unlike dualism, monism believes
in unitary perception of law. Their understanding is that both international and municipal law
forms part of one and the same legal order. So, we have one legal order and international and
municipal law is part and parcel of that same legal order. If they are part of the same legal order,
it means that the states are obliged to enforce international law before domestic forum is out of
the requirement of transformation according to monism. Monist argues that municipal courts are
obliged to apply rules of international law without any act of adopting by courts or

22
transformation by a distinct domestic act. It means that international law is automatically
incorporated into domestic law. So in this theory, there is “a doctrine of incorporation” as
opposed to “a doctrine of transformation”. Monism allows the automatic application of
international law before domestic courts. Since they will govern the same subject, monism
believes that conflict may arise. This conflict may arise in terms of application of international
and domestic law when they are applicable to the same subject or transaction. If that happens,
monist argues that international law should prevail. So, if conflict arises, according to monism,
between international and municipal law when international law is applicable for domestic
forum, then, international law should be applicable.

The reasons forwarded for the prevalence of international law over municipal law are not the
same for all authors. Authors such as Kelsen argue that because international law is a higher law
when we compared to domestic law, international law should prevail. They further argue that
international law even creates the states themselves. International law determines the criteria on
which a certain entity should be considered as a state. So, the position is that because
international law creates, designs a criteria on which a certain entity shall be regarded as a state
and their laws “note that domestic law is made by states”, domestic law is inferior to
international law. So in this case, the argument basically is that international law, as a law that
creates states and subsequently domestic law, it should necessarily take the upper hand if a
conflict arises.

There are authors, however, who tries to argue on different basis. Author such as Louterpacht,
for instance argues that international law shall prevail not because it is higher in hierarchy but
because it is more of protective to individuals than the states. So, in terms of protection of
individuals, international law gives more protection than domestic laws. From the spans of
extending adequate protection to individuals, this writer believes that international law should
prevail over municipal law.

To sum up, the writers stands on why international law prevail over domestic law is not the
same but it is their common believe that international law should have an upper hand over
domestic law in case conflict arises. There are countries that subscribed to the monist position,
for example, Portugal.

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The third theory is what we call harmonization theory. This is a theory developed and supported
by Ruseau. This theory is actually trying to relate this theoretical framework to reality. It does
not fully accept the monist view, nor does it fully accept the dualist view. There is something
that it takes from both dualism and monism.

Harmonization starts with a premise that there is no common field operation exists between
international and domestic law. The believe, therefore, is that each has its own area of influence.
Each is applicable in area where it needs to apply. Since there is no common area of influence or
there is lack of common ground on which the two legal systems operate, then, we cannot talk of
hierarchy in the first place. It is, therefore, impossible for them to say that one law conflict with
other, hence, one is superior over the other.

An important analogy that harmonization draws is from two domestic legal systems, the French
and English legal system. For harmonization theory, the relationship between international and
municipal law is similar with the relationship between English and French law. The English law
is enacted to regulate within the jurisdiction of that particular state and the French law is come in
to operation with a view to govern relation under French jurisdiction. We cannot extend French
law to the nationals of British, or vice versa. So, each is meant to be applicable within designed
area of jurisdiction.

Likewise, the authors do argue that international law is applicable in certain sphere and the same
is true for domestic law and there is no conflict. So, when international law is applicable before
domestic law, the rules of international law cannot be applied because there is a contrary
domestic law. In this case, international law should be disregarded for the reason that domestic
law is supreme over matters of internal affairs. It is worth Noting that while the proponents of
harmonization admit that one is not superior over the other, they cannot deny the possibility
whereby one regime may be applicable in another regime.

A state should not be supposed to breach its international obligations under domestic law, but
under international law. The state may not be able to give effect to a certain international law in
domestic court. But, as a result of the sphere of application, the state may be accused of failure to
keep its promise under international law. It does not, however, affect the position of domestic
law.

24
This theory may lead to a bit of confusion in terms of how to reconcile international and
domestic law where one, particularly international law, is supposed to be applicable before
domestic court. The domestic law position is unaffected as a result of contrary rule of
international law. If the state is not able to apply international law before domestic law, then, that
matter has to be settled under the international forum.

So, what in effect the proponents of this theory saying is that when we have a contrary rule of
international law to be applicable before domestic forum, the domestic law should always
prevails. It means that this theory tries to mix-up things; it takes something from monism and
some other things from dualism, too. It takes some essence of dualism in a sense that the two
legal systems operate in different bases. However like monism, it envisage a possibility whereby
it may be relevant to apply international law before domestic law; though domestic law should
always prevail.

The significance of these theories:

The question now is, “how is the practice related to the reality?” basically, the relationship
between international and municipal law involves two issues. First, what is the place of
municipal law before international courts “do domestic laws have a place to be considered by
international courts, say ICJ” and second, what is the place of international law before domestic
courts or for that matter other branches of government; is, for example, the legislative bound by
the rules of international law, is executive bound to apply or follow international law in its
routine activities of enforcing the law, etc. if, for example, international law is supposed to be
applicable before domestic law, then, there will be a pragmatic question. That is, “which should
take the upper hand?”

The role of municipal rules before international law:

The issue here is the extent to which international courts adjudicate interstate dispute by applying
rules of domestic law. The issue of international dispute should obviously be adjudicated based
on international law. International law, after all, is developed to resolve cases having
international character. This is because, domestic law is basically meant to be applicable within
the jurisdiction of a given state as a matter of principle. If we have a certain international law that
can be applicable to settle a dispute in question but a disputant party has a contrary domestic law

25
and there is no doubt that international law shall prevail and the authority they mentioned is art.
27 of the Vienna Convention on the Law of Treaties of the 1969. This article of the convention
provides that “a party may not invoke the provision of its internal law as a justification for its
failure to perform a treaty.” So, when a dispute submitted before ICJ, for example, what the ICJ
takes in to account is a treaty concluded between two states or the customs developed among or
between states. Domestic law, as a matter of rule, is irrelevant. The reason for prohibiting
countries to cite their domestic laws as a justification for their failure to perform a treaty is that
when a state entered into a treaty obligation, one of the obligations it takes is to take legislative
majors. Either before ratifying a treaty or after ratification, the state has to make sure that all
domestic laws are consistent with its international treaty obligation. So, if a domestic law is
contrary to a treaty obligation, art. 27 of the VCLT provide that the domestic law shall not have
validity.

The fact that domestic law cannot be invoked before international law is as a result of a state’s
duty to make sure that domestic laws are modified, amended and if no law is needed may, in
accordance with a state’s treaty obligation. Let’s say that a state is a party to the Convention
against Torture (CAT). That treaty prohibits any practice of torturing citizens by government
officials. That has its own committee which investigates violation of the convention in terms of
torturing people. If individual complains before this international forum, quasi-judicial body, to
seek redress, the argument is basically based on the convention against torture which is
international law. The country cannot say “I tortured him because my constitution allows me to
do so.” Because, it is the country’s obligation to make sure that its constitution comply with the
torture convention. So, when a state ratifies a treaty, one important obligation emanating from
the treaty is to take legislative majors. Those legislative majors not only include harmonizing
domestic laws but also to give international law an appropriate space before domestic law.

Within that general principle, it does not, however, means that domestic law is totally irrelevant
in international disputes before international courts. There are instance whereby a domestic law
may be relevant. Because international law, as simply noted is a very broad and in many
circumstances, it refers us back to domestic laws. It means that international law by itself may
make reference to domestic law. For example in deciding whether somebody is a national of
Ethiopia or not, the domestic law of Ethiopia is necessary. So, in matters where a dispute

26
requires, for example, determining nationality, the international tribunal should look in to the
domestic law of a given country. In such particular circumstances, domestic law is relevant. It is,
however, important to note that international law does not absolutely leave the matter of
nationality to domestic law. It is for the reason that domestic laws may sometimes be arbitrary.
Under international human right, for instance, we will learn that a state cannot simply deprived
of individuals their right to nationality and thereby render them stateless. If he does not have
nationality, a person is said to be stateless. Statelessness is a very catastrophic phenomenon. This
is because, as a national, a person does not enjoy any right and obligation arising from a given
state. So in circumstances whereby nationality law arbitrarily denying an individual nationality,
there are certain rules of international law that steps in and say no. so, to that extent, domestic
law may be relevant international arena.

The other scenario whereby domestic law may be relevant before international tribunals is that
domestic law may be presented as evidence of international custom. For example, a country may
argue saying that there is a custom developed by two or more states which is binding on them. to
prove that a custom has been developed and if a state has incorporate that rules in domestic law,
that domestic law can be presented as an evidence of the existence of custom between parties to
the dispute.

As a matter of reality, domestic law could be relevant before international tribunal. International
law, as said in the foregoing discussion, is basically meant to adjudicate interstate cases by the
use of international law. But it may directly refer to domestic law for the reason that it does not
have either a solution to a given problem or domestic law can be presented as evidence.

The role of international law before municipal law:

International law, which is basically supposed to govern interstate relationship, may be invoked
by parties before domestic courts. Are there international rules in Ethiopia, for instance, that
allow international law to be invoked before domestic law? Can Mr. Adane, as a person accused
of a criminal offence, invoke any of international rules?

In this issue, the general trend is to give a place to international law to be applied before
domestic forum. Indeed, an approach that a country follows may be different. Country A may
follow a certain approach, while some other state follow a different one. So, the issue may be

27
complicated when we compared to the applicability of municipal law before international forum.
It is, however, possible to say that there are definitely place whereby international law is
applicable before domestic forum. The general principle which can emanate from art. 27 of the
VCLT are that the state has an obligation to act in conformity with international law. When a
state acts before domestic law, it should comply with international law. It is not only for the
courts but also to other branches of the government.

For example, how should a suspected criminal be apprehended, treatment of prisoners, how
should judicial proceeding go about, what kinds of laws should be enacted, etc. The legislative
majors that a country may take have to comply with international law. The state may have an
interest to enact a law to put it in place as an anti-terrorism law. The anti-terrorism law is
supposed to govern how terrorists, for example, should be investigated. So, in that regard, we
have international rules on terrorism.

For courts, in terms of giving effect to the right to effective remedy, imposing sanctions and etc.,
international rules has to be observed.

But as said before, In terms of giving effect of international law can be applicable to domestic
law. The position of a country may be varied. Some countries may allow the automatic
application of international law before domestic law (monism). Some others require further
actions and formalities for a treaty or custom to be applicable before domestic law (Dualism).

Practice of Ethiopian courts:

The Ethiopian practice on this matter shows that many of the cases were gone to child custody
case. Who should, for example, exercise guardianship if one of the parents of the child dies?

It is, however, important to note that there are only a few cases which were entertained taking in
to account international law here in Ethiopia so far. compared to the expectations, it is only in
rare situations that our courts have the courage to apply international law; they only stick to
domestic law like, for instance, family law, succession and etc. generally speaking, there is a
week trend of applicability of international law before domestic courts in Ethiopia. That is
proven to be true by available literatures.

28
Subjects of International Law

This issue is similar with domestic law. We can make analogy from law of persons it is discussed
who are subjects of Ethiopian law and what are their respective capabilities and limits. Who are
subjects of Ethiopian law and how do we determine a certain entity is a subject of Ethiopian law?
This is important because we will be discussing law of international persons. The subjects of
Ethiopian law are natural/physical/human persons and artificial persons.

When we deal with subjects of international law, we are by no means referred to topics of
international law. We are referring to that have rights and obligations enforceable under
international law. The entity that that have rights and obligations enforceable under international
law can be called an international person. Thus, subject of international law are international
persons. Not only these entities possess rights and obligations, they also possess their capacity to
maintain their right through enforcement.

What are the specific entities that have rights and obligations enforceable under international
law?

States; States are very important subjects of international law. In fact under traditional
international law, states were regarded as exclusive subjects of international law. Traditional
international law did not recognize other entities as having rights and obligation that can be
enforced under international law. But currently that is no longer recognized and other entities
other than states are there with international personality.

What are the attributes of statehood for an entity to be regarded as a person under international
law? By the way other entities may have international personality. When compared to
international personality of states their personality is reduced personality compared to full
international personality. States have full-fledged international personality. If you look at the
powers they exercise under the international sphere it completely differs from the manners in
which other entities enjoy international personality. Or the personality of other entities is what
you call it derivative international personality as opposed to original international personality.
And basically the difference is that the entity is a state the international personality is automatic.
In case of other inteties, the international arises from the consent of the states. And in terms of
capacity the international personalities of other entities beyond states is very limited. This is not

29
peculiar to international law. When we say states are not exclusive international person we are
not at all saying that other entities have the same right and obligation under international law.

A new entity may crystalize into a state from various forces. For example they may emanate
from colonization. Former many states may merge into one state. Or an existing state may be
dissolved, dismantled into two or more entities. There are various ways in which we should
apply the ground of statehood to ensure that a new entity is in fact a state or not. Under
international law whether an entity can be regarded as a state is something to be determined on
state basis. The existing states determine whether a certain new entity should be qualified as state
as opposed to a supra-national organ determining.

The criteria states employ to test whether a certain entity is a state or not are found on the
Montevideo Convention on the Rights and Duties of States of 1933. As a treaty it has very few
states who have ratified it. But people still argue but it has obtained customary international law.
It is believed to have codified state practice, customary international law, on the criteria of
statehood and hence applicable to every state of the world. Its relevance does not arise because
it’s a treaty but because it’s a codification of existing state practice.

Article 1 of the treaty says:

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

That entity need to have a permanent population,

A defined territory,

Government, and

It should have the capacity to enter into relations with other states.”

What does these qualifications constitute? Permanent population is very clear. If you have a very
large territory with no population at all, that by itself does not give rise to statehood. The other
thing is that as long as there is a permanent population it doesn’t matter if the number is too
small. What matters is that the state has a permanent population. Even then, the entity has a
certain portion of its population as mobile. That doesn’t affect the statehood as long as
significant number of the population lives permanently within the territory.

30
The second point is in relation to territory it is possible to say that the entity needs to have a
territory in which it operates. It is not concern under international law that the entity in question a
settled and undisputed territory. A good example is Israeli. But on the other hand if you have a
government that is established but it does not have any territory the entity in question controls,
the requirement cannot be fulfilled.

The third is regarding government. It is a fundamental requirement because the fulfillment of

other conditions depends on this. The essence of this requirement is that there has to be an
effective government in the sense that it should be able to exercise all governmental power in
terms of the executive, legislative and judiciary. There are two aspects of effective government.
One is the requirement of effective domestic control. The government should be in a position to
maintain Constitutional autonomy. And the second one is it is internal. It should be in a position
to maintain peace and order and everything related to a functioning government.

It also has an external dimension in the sense that it should be independent. Of course in relation
to this criterion there is an overlap with the requirement of to enter into an international
relationship. But it is possible to say the requirement of effective government among other things
requires the government in question should establish and maintain a legal order in the sense of
constitutional autonomy. It should be effectively administering its people and the transaction in
that country, and externally it should be able to autonomously act in its relationship with other
states.

In reality the requirement of effective control by the government is not strictly applied. A state
may be temporarily deprived of to effectively control a given country in which case it does not
exist as a state. There are scenarios may not be able to maintain in meeting this requirement but
continue to be recognized as a state. International law does not automatically turn its eye an
entity fails to meet its requirements on temporary basis. The requirement of effective
requirement and its application is not consistent under international law. The circumstances
determine.

In circumstance where the mother state does not recognize cessation the international community
is not willing to recognize. In other circumstance where you have legitimate issue of self-
determination and the country against which cessation is claimed has agreed the international

31
community is willing to accept. It is not grossly applied in all circumstances. Countries extend
recognition depending and having regard to circumstances of the case.

The fourth requirement is capacity to enter to international relationship with other states. This
requirement is not about the habitual state of fact. What is important here is whether an entity has
a legal capacity to enter into an international relationship with other states. By this what we
imply is the ability to conduct international relations with other states as well as political,
technical and financial capabilities to do so. The fact that the state exercises this capacity is a
different matter as long as it has legal capacity to do so. Basically this requirement is about
independent from foreign power. In some cases you may have an entity that is similar to a state
but abdicated its formal foreign relationship to another state in which case that state doesn’t have
a legal capacity to enter to international relationship. So the requirement here is of legal capacity
not about the actual implementation of that capacity.

There are various scenarios that may reduce a state’s competence to some extent but does not
deprive of fulfilling this element. In a world where you have interdependence you can have a
situation whereby one state may exercise influence over the other. That is tolerable as long as it
does not go to the extent of creating a circumstance capacity of the state is completely lost. You
can easily understand this if you compare for example with certain entities similar to a state but
cannot be regarded as a state. If you take protectorates under international law, it I a territory
similar to a state butt through a treaty it abdicated of entering into relationship with international
states. It is a rather protecting state. They surrender voluntarily the management of their foreign
affairs to another state.

Additional requirements of statehood after Montevideo Convention of 1933

Some writers argue there are additional requirements. These are not the criteria’s everybody
agrees with nor is it the states all over the world apply. This is writing of scholars.

One additional point is to implement human rights in general and more specifically self-
determination. Another additional requirements proposed by authors is recognition. The state has
to be recognized to be regarded as a state. In terms of self-determination and protection and
promotion of human rights, states in recent times were in favor of applying this.

32
The issue of recognition, some authors argue, for a new entity to be regarded as a state apart
from fulfilling the implementation human rights and right of self-determination it should be
recognized by existing states. Those authors who support this position came up with a theory
called constitutive theory of recognition.

Others argue that recognition is a limited criterion. It is simply a formal acceptance. They are
backed by the declaratory theory. According to this theory a state exists as long as it meets the
four criteria in Montevideo Convention, no more. Of course they argue that if you are not
recognized by the international community the state will face difficulty in terms of establishing
international relations. But supporters of Declaratory Theory argue that although it can be a
practical bar it does not deprive that entity the status of statehood. We have to treat separately
criteria as well as practical impediment.

There are other authors who take a midway position. They say that now neither the Declaratory
nor the Constitutive theory is correct. The truth is in between. Recognition is not totally
irrelevant nor is it a determining factor in all circumstances for an entity to be considered as a
state. Recognition is important in terms of providing evidence. It can be an evidence of a meeting
of the criteria. In certain circumstances the fulfillment of the elements is very grave in which
case recognition is not important.

There is no unanimity for using the recognition and protection and promotion of human rights as
an additional element for an entity to be. And the fulfillment of the criteria in reality is not a
guarantee that the entity in question will be recognized as a sovereign state.

Theoretically if one of the criteria is lost it means that the entity is no longer a state. International
law does not rush to deprive the status of statehood because it is more interested stability, peace
and so on.

International Organization;

They have existed since 1815. But the political importance of international organizations has
increased after the First World War. How do we know an international organization has
international personality?

33
There are several indicators. The first thing you have to see is their constituent document, the
constitution of the international organization. Does it say that the entity in question that is formed
by that treaty has international personality? That is going to be one confirmation area.

The problem is that many of the treaties establishing international organization don’t tell you it
has international personality. For example in respect of the UN Article 104 of the UN Charter
what is provided is the UN has personality within member states. Personality within a member
state and international personality are different. In this case how do we know that this entity has
an international personality?

The method is to inquire international personality from the powers and rights it has, to infer from
them. If there are powers and responsibilities those entities shoulder which cannot be exercised
without having international personality, it means that the entity has international personality.
And this is taken from the opinion of the ICJ in its advisory opinion to the UN on the reparation
case.

Briefly, based on the decision of the ICJ on the Reparation Case the indicators of international
personality of international organization is one is its inclusion in the constituent element. Two is
the capacity to enjoy immunity and privileges. Third is the capacity to enter into an international
agreement with states and other organizations.

Individuals;

Under traditional international law individuals were treated as object rather than subject of
international law and do not have the right to standing. This happened because in the 19 th century
positivist school of thought which consider the states as exclusive subjects of international law.
However this is changing nowadays and individual and acquiring international personality. This
personality is granted to (works to) individuals only in two areas (fields of public international
law);

 In the area of international human right law

 In the area of International criminal law

Under traditional international law and off course as currently as a principle individuals have no
standi to bring cases or appear before international tribunals judicial and quasi-judicial bodies...

34
so the blessing(willingness) of the state is even nowadays important for individuals to have
standi. We call that derivative personality.

Note:
Nowadays international law gives a direct self-standing right to individuals before an
international fora. Individuals do have substantive right if we look at international bill of right
and other conventions. For example right including first and second generation rights, the right
to be free from torture, freedom of association and the like. And also third generation rights
such as including the right to development, self- determination so and so forth.

Not only substantive right international law provides but also through the willingness of states,
individuals can also claim enforcement of their right when it is violated. That means individuals
also have a procedural rights or the right (standi) to bring an action not only to domestic for a but
also to international fora.

So while state provides a specific consent it can happen but this does not mean that individuals
can bring his case to any fora he likes. That becomes the issue of reduced personality [impotent
personality] For instance if you go to ICJ seeking a relief for violation of human right that is not
possible b/c ICJ simply a for a where inter- state conflict would be entertained. But short of ICJ
we have a lot of other quasi- judicial bodies where individuals can bring an action.

Note: art.34 of the ICJ statute says that only states can bring a case as defendant or as an
applicant before the ICJ. Let alone individuals inter-governmental organizations cannot do
that.

Example of forums individuals can take their case of violation of human right alternatively from
the domestic forum’s; African commission, human right committee

So states have substantive as well as procedural rights that is enforceable under international law
may be that’s why individuals are nowadays treated as subjects of international law.

Again when individuals perpetrate an international crimes could be held liable directly. These are
serious crimes the violation regarded as international crimes either through treaty or either

35
through customary treaty. For instance a crime like Genocide, piracy, apartheid so and so forth
etc. is crimes of international nature.

Since a long time ago piracy is regarded as international crime according to the custom. Now
since piracy is an international crime every state has a jurisdiction to entertain the case every
state can hear and try. The same shall apply to other crimes with similar nature like genocide,
apartheid. This is b/c of a concept called universal jurisdiction.

States that have a limited international personality …..With no capacity to act independently

Colonies: no longer exist

Mandated and trusted territories: no longer exist….

Mandated territories: colonies of the losers of the First World War given to other winning states.
Later it’s transferred to trusted territories.

Belligerents: for instance the state made an agreement with the belligerent shall be bound by it.

Protectorate: no longer exist now…

Are entities having similar status to state except that they are under guardianship of another state,
so the power of the guardian is to undertake the management of that state. It means that it
surrender some of its authority including the undertaking of foreign relationship with other
states. Because that is lacking they cannot be called state strictly speaking but they are supposed
to have international personality. So this is a kind of consensual agreement between the protected
state and the protector. Example; Monaco and sub-marine

Corporations: are again like individuals the over aspect was used to be regulated by domestic
law. However under current international law corporations do have their own distinct
international personality. And the gradual expansion of international law so as to include
corporations and other subjects of international law is recommendable because corporations
nowadays are even more powerful than the state themselves. They do have huge economic
power that could be translate into a political power so that they can influence the political aspect
of states.

36
Multi -national and Trans-national companies…they have as standing to submit a complaint or
access to court. These institutions are allowed to entire into a kind of international agreement.
For example they can sign a concession contracts with a country.

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State Recognition

Recognition is highly to do with international personality; there is a controversy as to whether

recognition has additional criteria apart from traditional criteria of statehood. Recognition under
international law is similar with acknowledgement under family law. Under international law
there are circumstances that called for recognition that can a rise in relation to new state. (1) a
new state may seek a recognition by the existing state (2) a government change (3)
belligerent may get a remedy upon the territory they exercise effective control.

Note: Recognition is nothing but acceptance of a state. So recognition constitutes an

acceptance of a particular situation. Such acceptance could be (a) acceptance of a certain state
of fact (b) acceptance a certain factual situation.

What are the criteria for a state to extend recognition to other state? A simple answer to this
question is politics plays much role than the legal criteria. The recognition of the new state is
dominated by the politics rather than legal criteria. So it is a highly politicized area that means
politics has an upper hand than legal criteria. Example; none recognition of china and Korea by
USA, Israel by most Arab countries.

Theories in Relation to Recognition of States

Constitutive theory: it is a recognition that brings a new entity into a state. It is not the fulfillment
of legal criteria. So recognition according to this theory is a crucial factor.

What is the problem of this theory?

The issue of recognition by a state but not by others in this case should that entity have
international personality. For instance let say there are 200 states, a state is recognized by 100
and not recognized by the rest. The state will have a Partial personality. So the constitutive
theory cannot answer this question.

If you do not consider an entity as a state because the non-fulfillment of that particular criteria it
means that entity cannot be bound by customary international law. For example the principle of
non-aggression, respect the sovereignty of other countries so and so forth. By not recognizing
we are giving a free license to states to engage in the mentioned activities.

38
Declaratory theory

Exactly the opposite of constitutive theory maintains that recognition is made an acceptance of
already recognized state. It simply accepts it and recognition does not have any place for
attainment of statehood. So that a new state will acquire capacity as a state by virtue of its effort
not by the consent of an already existing state. So the declaratory theory does not subject
attainment of a state-hood to recognition.

A theory holds a middle ground (Hybrid)

According to peter Malanzuk’s Hucrust, recognition “cannot be a determining factor for

statehood nor is it totally irrelevant” so we have to consider recognition as evidence when a state
of fact that gives rise to a state hood is controversial. There are specific instances supporting
constitutive theory and specific instances supporting declaratory theory.

Forms of Recognition

A state recognition may take a form of (1) De jure recognition or (2) De facto recognition.

De facto Recognition: it is a provisional recognition there is some doubt as to the long term
viability of the government when we have that kind of doubt may not continue to govern the
state in question then a state may grant de facto recognition. It is a scenario in which a hesitant
assessment of the situation. As some writers note it it’s like” a wait and see scenario”

Why is it necessary to extend a de facto recognition wouldn’t it be better to wait to grant de jure
recognition?

Example; during Italian invention UK extended a de facto recognition and latter revoke it due
disagreement. Initially why UK extended a de facto recognition instead of de jure according to
the instructors view because she wasn’t sure whether Italy will continue as a conquer or not
depends on internal resistance so and so on.

Possibility of withdrawal is one important feature of this recognition

Such recognition cannot be a base for diplomatic relations while the de jure recognition serves
as a base

De jure Recognition: permanent recognition

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Premature Vs. Overdue Recognition

Premature (precipitate) Recognition: is a kind of recognition that a state extends without the
fulfillment of the conditions to form statehood. Particularly regarding the effective control. So
recognizing an entity without ensuring that all these requirements are mate then that recognition
is pre-mature. And premature recognition is very controversial particularly in a case of secession.

Overdue recognition: a state is refraining from recognizing a certain state for political reason for
example the case of Somaliland.

Express Vs. Implied Recognition

Express recognition: off course when we say express recognition the recognition it should not
always must be in written from as long as the government declares that it. Implied recognition on
the other hand the act of a state may imply that it is actually extending recognition to a certain
country. That is what the term implied is accepted.

So what kind of acts constitute as implied recognition?

When a new state attains sovereignty or a new state comes in to power when a state say
congratulation that amounts to implied recognition.

Without expressly declaring that it extended recognition if a state go ahead and establish formal
diplomatic relation with the new state or with the new government implied recognition.

Conclusion of bilateral treaty with the new state although you are not recognize it expressly, your
act speaks about your intention to recognize. However, there are certain circumstances which the
already existing state and the new state may have and cannot be presumed to have extended
recognition. Example could be negotiation.

How do we know that recognition is either de jure or de facto?

In case of express recognition it is not controversial to identify were the state expressly provide
recognition. But implied recognition presumes de jure recognition. Implied recognition is
basically connected to de jure recognition as opposed to de facto.

40
Territory

To begin with territory is a very important concept in international law, various issues in
international law in one way or another related to the issue of territory. Remember the
discussion on the criteria of statehood, one of the requirements for state is having a defined
territory since we cannot have a state in vacuum. So it is a condition for sovereign state to exist.
If you look at major principles of international law such as sovereignty or jurisdiction they are in
one way or another related to territory. For example one major ground for state to exercise
jurisdiction is territory. When you take sovereignty have two manifestations; (1) Manifestation
of independence (2) Territorial sovereignty. So a state is sovereign within its territorial limit so
fundamental principle of international law that you find in united state charter such as
sovereignty and jurisdiction again highly intertwined with the concept of territory. That’s why
we see rules in international law that insures the inviolability of territory.

Note: In terms of inviolability of treaty UN charter provides under Art. 2(4) and Art.2 (7)
the first one is about prohibition of use of force and territorial integrity of another state.
(principle of none use of force)The second one prohibit the interference in the internal
affairs or domestic jurisdiction of another state (principle of non-interference)

Territorial sovereignty

It is a term that denotes the right of the state to exercise function or power of a state within its
territory to the exclusion of all other states. The question is where is the limit? When we talk
about territorial sovereignty it can extended to all the land mass of the state including internal
waters (enclosed in that particular country) i.e. waters other than territorial sea, the land under
the water, the territorial sea (part of the high sea that the state is given the right to exercise
sovereign power or jurisdiction), the air space over the land or the air space to the land.

Terms used to describe the scope of the state’s power and territory; boundary, border or frontier,
delimitation and demarcation.

Delimitation: identify a state location by its geographic location using the longitudes and
latitudes. By using geographic coordinates on the map you may not found it on the ground.

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Demarcation: identification of the location using physical objects, it could be a fence, wall or
the like. Note that demarcation involves delimitation it’s only after delimitation on the map
that we move on to delimitation.

Types of Territory

Territories under Sovereign Control: in effect these are countries under a sovereign control.

Terra-Nullius: a territory not under sovereign control.

Res-communes: is a territory in which no state can claim sovereignty. So it’s not susceptible to
sovereign control. Its considered as a common heritage of mankind and each state has the right
to make use of this property so it’s possible to fish on the high sea undertake scientific study so
and so forth, example; the outer space and high sea.

Is it possible to acquire territory under international law?

Modalities of acquisition of Territory under International law

Occupation: (an original way of acquiring a territory) gaining new territory through occupation,
or occupation of a terra-nullius. If there is a territory that has no sovereign control in the past
occupied and if such occupation is followed by effective occupation with the intent to exercise
sovereign control then occupation used to give effect to acquiring a territory.

Prescription: (a derivative way of acquiring a territory) similar to usucapsion in property law;

occupying a land that is already occupied if the first sovereign does not protest the occupation.
After a lapse of a reasonable period of time.

Subjugation (annexation): is to conquest, annex or occupy a state using force as a national

policy. This was a valid mode of accusation before First World War. Because there was no law
that prohibit such action. However after the WWI it is no longer legal to acquire territory using
force following the treaty of parties or Paris pact or a Kellogg Briand pact 1929 outlaw using
force as a national policy. Example; Japan’s occupation of manchuko failed to be recognized by
UN.

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Session: a transfer of territory through an agreement or a treaty. It actually happens as an
agreement between a victorious and a losing state after a war. It could also happen by exchange
of a territory among states egg. Alaska sold to USA

Session should not be effected in violation of people’s right to self-determination

Nemoda principle: you cannot transfer what you yourself you don’t have.

Session exercised in violation of people’s right to self-determination is violation of thus

principle

Aberration (aversion): you may acquire a land by erosion, or either volcanic eruption, land slide
generally as a result of natural factors.

All modalities are outdated, some of them are illegal nowadays others are rare in their
application so basically is nearly impossible to apply these modalities and acquire territory under
contemporary international law. So why do we need to discuss them?

For historical reason; we need to know how the current system of international law developed
(historical relevance)

They are still relevant in settling dispute over territory; because the law need to be applied to
settle dispute is the law used to be applied when the territory is acquired. This applies only for
old states that acquire a territory based upon the above modalities. It’s not possible to be claimed
by the new states since there is a law that prohibits the application of the above modalities.

The Right to Self-determination:

It is a right recognized under the UN charter under Art.1 which actually set out the purpose of
UN…”to develop friendly relations among nations based on the respect for the principle equal
right and self-determination of people.

Again the same right is discussed under art.73 of UN charter that is in relation to colonizing
countries

Article 73

Members of the United Nations which have or assume responsibilities for the administration of
territories whose peoples have not yet attained a full measure of self-government recognize the
43
principle that the interests of the inhabitants of these territories are paramount, and accept as a
sacred trust the obligation to promote to the utmost, within the system of international peace and
security established by the present Charter, the well-being of the inhabitants of these territories,
and, to this end:

a.) to ensure, with due respect for the culture of the peoples concerned, their political, economic,
social, and educational advancement, their just treatment, and their protection against abuses;

b.) to develop self-government, to take due account of the political aspirations of the peoples,
and to assist them in the progressive development of their free political institutions, according to
the particular circumstances of each territory and its peoples and their varying in stages of
advancement;

c.) to further international peace and security;

d.) to promote constructive measures of development, to encourage research, and to co-operate

with one another and, when and where appropriate, with specialized international bodies with a
view to the practical achievement of the social, economic, and scientific purposes set forth in this
Article;

???Read the teaching material “???

How do the principle of self-determination and its enjoyment may contradict the principle of
territorial integrity?

“Read Quebec case”

“The Katanga’s case”

Principle of self- determination:

(1) Internal Self-determination: it can be exercised within the territorial boundary in manner that
accord with the Principe of territorial integrity.

(2) External Self-determination: is secession, a group may exercise self-determination at the

expense of territorial integrity. It is only under extreme circumstance that the jurisprudence of
international law allows self-determination. (A) in case of colonies (b) subjugation (c) denial of
internal determination

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Respect of political boarders (uti possidendi) which means respecting the political boarder or a
state that delimited during colonization. No matter how the boarder drawn by the colonial power
is arbitrary. Regardless of their arbitrariness these boarder has to be respected. In 1964 the OAU
passed a resolution on this issue in that resolution it declares that “colonial frontiers existing at
the date of independence constitute a tangible reality and that all members play to respect such
boarders …

“Every finishing line is the beginning of new race”

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Jurisdictional relationships between international and domestic courts:

In this specific topic, we will try to answer some questions: is there, for example, subordinate
and hierarchical relationship between international and domestic courts? Jurisdiction is about the
right of states. When we talk about jurisdiction of states, it is basically about the power or right
of the state to affect people, property or circumstances. To this end, the states have to regulate
conduct of individuals and consequence of events can be taken as jurisdiction. Being the power
of the state, jurisdiction may take different forms:

Jurisdiction of the state in relation to legislative matter; it is when the state has a jurisdiction to
enact laws on certain subject matters. The state, be it federal or unitary under international law,
has a legislative power to enact law that are applied on individuals. B. judicial jurisdiction; it is
the judicial jurisdiction of courts to entertain a particular case. In this case, the issue will be
whether a court of a given country has a power to entertain a particular case that arises, for
instance, in relation to property dispute or any other matters. C. Executive jurisdiction; it is the
power to control the power to enforce laws. So, when we talk of state jurisdiction, it could be
legislative, executive or judicial jurisdiction.

Jurisdiction under international law is basically related to state sovereignty. The concept of
sovereignty and jurisdiction of states are closely related in the sense that a state will have
jurisdiction over people, property or circumstance between sovereign. Sovereignty entitles a state
to exercise jurisdiction. It is also related to the concept of equality of the states. It is, still related
to the concept of non-interference. So, the principle of jurisdiction again has something to do
with the principle of non-interference in domestic affairs a particular state. It is, therefore,
possible to conclude that the term jurisdiction is related to three important principles of
international law: principle of sovereignty, equality of states and non-interference in the
domestic affairs of a given state. Under this topic what we are going to discuss is the jurisdiction
of municipal courts, not international courts.

It could generally be said that international tribunals have a subsidiary role: the principle of
complementarity is applicable in order to see whether a particular litigation has to be handled by
international or national tribunal. So, the relationship between international and municipal courts
can basically be explained under the principle of complementarity or subsidiarity. This is
because; municipal courts have primacy to entertain cases. The role or jurisdiction of

46
international courts comes to the picture where the matter for different reasons should be come to
their attention. Otherwise, it is the primary responsibility of domestic courts to entertain a case.
That is why the principle of exertion of local remedies is applicable. So, the principle of exertion
of local remedy implies that first the case has to be adjudicated by domestic tribunals.

In the majority of the cases, for example, individuals do not have direct access before
international tribunals. They should first bring their case before municipal courts. It is only
where under international human right law, for instance, individuals do not have remedies or the
remedies are prolonged for whatever reasons that they could have an access to international
judicial or quasi-judicial bodies. The aim is true when we come to international courts. If we, for
example, see the jurisdiction of the International Criminal Court (ICC), it will entertain cases
where domestic courts are unwilling or unable to entertain the same. It means that first we took
our case to domestic courts and if they are either unwilling or unable to entertain, we could bring
to the international courts. The mere fact that domestic courts are willing to entertain cases does
not mean that they are able to entertain the case.

It is, however, important to note that there might be treaties that allow individuals to have direct
access to international courts in exceptional circumstances. Say, for instance, individuals who
have been deprived of their human rights, wills the European council system have direct access
before European court of human right. Mind you, these are exceptions which do not, therefore,
represent the general trend.

The relationship between global and regional tribunals:

In relation to human right, for instance, if an individual is subject to torture and provided that the
country in question is a party to both global and regional treaties including the optional
protocols, the individual can take the matter before the human right committee which is quasi-
judicial body and he can also take the matter to African courts. The question now is what is the
relationship between these tribunals? Do, for example, individuals first take their matter before
regional tribunal before they take their matter to international courts? Or do they have unlimited
or a parallel access to regional and international courts? In practical terms, it may be argued that
regional courts will have a priority for the concept of convenience. It is clear that taking once
own case to Dakar is more convenient than taking it to Geneva. It is, however, worth noting that
in terms of paralegal relation, there is no hierarchy.

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Sovereignty

We have stated in the foregoing paragraph that the issue of jurisdiction is closely related with the
issue of sovereignty and it is for this reason that we are raising the concept of sovereignty at this
juncture. Remember that the state assume legislative, executive and judiciary jurisdiction
because it is sovereign. So, sovereignty is at the heart of state’s power to exercise jurisdiction.
The state’s entitlement to exercise jurisdiction is based on sovereignty. Our teaching material
tries to define sovereignty as a term that implies autonomic theory: a master with no master
above him. So, sovereignty is all about being a boss in once home. When we say a state is
sovereign what we are saying is a state is a boss in its internal affairs. There is no any other boss
other than a state within its boundary.

There are two manifestations of sovereignty: first, the state has an exclusive power over its
internal affairs. Second, sovereignty is about independence: independence in interring into a
relationship with other states. It means that a state does not be bound to inter into a treaty any
kind of relationships without its consent. So, it is about consent. Because a state is a sovereign, in
its relationship with other states, consent is very crucial: it is through its consent that a state
enters into a relationship with other states.

The state’s sovereignty in terms of having exclusive power over its internal affairs can be date
back to the year 1648. It is the year in which European countries signed the treaty of west phalia.
The treaty is named after the place where it is signed: west fphalia, the province of Germany.
This treaty had marked the end of the 30 years war which was the result of religious conflict
between Protestants and Catholics. That conflict had actually an interstate manifestation.
Therefore, the treaty of West Phalia had been useful in terms of ending hostilities arising from
that religious tension. Because this treaty marked that a state, within its jurisdiction, having a
control in its internal affairs, has a legitimate power to govern or regulate religious affairs. So,
the issue of religious affairs was no longer continental issue.

The second manifestation of sovereignty was believed to be emerged with the emergence of
positivism school of thought. If we look at all ideas of positivism school of thought, they give a
significant importance to state sovereignty or state’s consent for everything. So, for some
authors, the second aspect of sovereignty in terms of state’s consent is something emerged as a
result of the emergence of positivism school of thought.

48
Being emerged as a result of this historical event, however, the principle of sovereignty is now
found its way in the United Nations charter. One of the principles of the United Nations charter
which is still enforce is the principle of sovereignty in art. 2/7 of the same charter. So,
sovereignty being defined as a state’s mastering position over its affairs continues to reign and
affect international law. Nowadays, however, sovereignty in the states of having an exclusive
power over internal affairs is no longer in effect. Not there is reduced sovereignty. Put
differently, there are a lot of factors that erode sovereignty. The underlying assertion that a state
is no longer subject to any other matter does not hold water, for various reasons there are a lot of
circumstances that warrant a state’s subjection to other authorities.

The eroding factors of state’s sovereignty include: economic inter-dependence of the states,
technological advancement, civil wars, the states duty to protect human right, involvement of
international organizations and etc.

Consent: consent can also be a ground of reducing sovereignty of a state in a sense that by
exercising their sovereignty, states may consent to treaties. By becoming a member to that treaty,
however, states are losing some of their sovereignty.

Co-existence: a state may not carry out certain activities if those activities have a trans-boundary
effect. An activity undertaken under domestic law might have a far reaching consequence in
other countries. That should clearly be avoided is the issue here. For example, a state cannot
engage in certain pollution activity if that has an extra-territorial effect. We have an activity of an
industry in Canada which causes environmental disaster to the United States and later the court
develops the normal principle. So, a state can undertake an activity within its jurisdiction for the
principle of sovereignty but it has to make sure that it will not have an extra-territorial effect.

Intrinsic limit to sovereignty: the idea here is that a state may give its sovereignty on its own
notion or initiation. It is, therefore, possible to conclude that there are not only external
limitations for the reduction of the state’s sovereignty but there are also internal limitations. The
current situations are obliging states to limit their sovereignty by themselves constitutionally. It
is, therefore, no longer true that a state can treat its individuals in a way it likes. There are
limitations on the basis of human right: the state is no longer allowed to torture its people.
Indeed, torture is now an absolute right. It cannot be even allowed under the guise of disclosing
information from terrorist or any other grave circumstance.

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Coming back to jurisdiction, as stated earlier, jurisdiction can be legislative, executive and
judiciary. But international law is not a law that dictates how jurisdictions shall be apportioned
between legislative, executive and judiciary. International law does not have any business with
the relative power one government organ over the other: that is purely a domestic law matter. So,
it is the power of the constitution or any other ordinary legislation to determine the relationship
between government organs.

International law is relevant in jurisdiction only when a state claims extraterritorial jurisdiction.
A state may, for one reason or another, claims extraterritorial jurisdiction. Remember that as
long as a certain property, person and circumstance or event happens within its jurisdiction, it is
not surprising that a state will have jurisdiction because of its sovereignty. But there are times
where a state may wish to exercise jurisdiction extraterritorially over citizens residing abroad,
properties situated abroad, and events happened elsewhere, etc. so, simply, it is when these
situations arise or where a state would like to assume extraterritorial jurisdiction, then, the
relevance of international law will come into the seen.

It is possible to imagine that in certain property, people or events, a state might have overlapping
jurisdiction. Where we do have overlapping jurisdictions, then, international law come to the
picture and resolve those overlaps. As long as a state have an addition to assume jurisdiction
over foreign nationals, property and events, then overlapping jurisdiction is inevitable.
Jurisdiction that the state would like to assume can be civil or criminal jurisdiction. But the issue
of civil jurisdiction is not the business of international law. This is because; this is Public
international law, not private international law. So, where we do have this kind of disputes over
civil matters, the applicable law will be private international law or sometimes conflict of laws.
In international law, however, the issue of jurisdiction is relevant and pertinent in relation to
criminal matters. There are times where a state may want to assume criminal jurisdiction over
foreign nationals, an Ethiopian national residing abroad, etc.

Grounds of assuming criminal jurisdiction under international law:

There are a lot of principles of assuming criminal jurisdiction under international law. Among
others:

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Principle of territoriality; according to this principle, the state will have a jurisdiction to entertain
a criminal matter when a crime is committed within its border or territory. The fact that a state
will assume criminal jurisdiction over crimes in its soil is not surprising for the obvious reason
that it is a manifestation of states sovereignty. We have already said in the foregoing paragraphs
that a state is sovereign in its internal affairs. One way through which a state exercises its
sovereignty in criminal jurisdiction is where a crime is committed within its border. It is also one
way through which states were discharging international obligations. It is clear that a state has a
duty to prosecute individuals. National authorities are required to maintain peace and security in
that country.

From practical point of view, it is tenable to give this kind of jurisdiction to the states. Because
of the presence of different evidence: witnesses are there and quite often the offender is also in
that country. Indeed, there are circumstances whereby the offender commit the crime and flee.
Under normal circumstances, however, offender is to be found in an area where the crime is
committed.

Based on the territoriality principle, the court of the country will assume jurisdiction although the
individual is a foreign national. What matters is the fact that the crime is committed within its
territory. Under international law, this principle of territoriality is the principal ground on which
a jurisdiction is assumed. So, territorial principle is a grand principle it cannot be said an
exclusive ground of assuming jurisdiction, though.

Subjective and objective territoriality; in principle of subjective territoriality, a state will have
jurisdiction when a crime is commenced in its border but completed elsewhere. So, here what is
important is the commencement of the crime. In other words, it means that we can assume a
possibility whereby a commission of a crime has been started in one country but can be
completed in some other country. In which case, a country in which the crime has been
commenced will have a jurisdiction on the basis of subjective territoriality principle. The country
in which the crime has been completed will also have jurisdiction based on the objective
territoriality principle.

Say, for example, there is a border shared by Ethiopia and Kenya, moyale. Assume that there is
an individual with a gun therein. That individual from an Ethiopian border shoot a gun and
killed another individual standing in Kenya. In this case, the crime is started in one country

51
(Ethiopia) but completed in some other country (Kenya). It means that both Ethiopia and Kenya
will have jurisdiction by principles of subjective and objective territoriality respectively.

Nationality principle; in this principle, a state will have a criminal jurisdiction where a crime is
committed by its national. Remember that nationality is a link between a state and an individual.
The fact that Dr. Mizane Abate is an Ethiopian national means that nationality is creating a
relationship between a person who has a nationality and national state. By virtue of nationality, a
person is entitled to a number of rights: including having a passport.

Nationality, therefore, is again a ground for assuming a criminal jurisdiction under international
law particularly for civil law countries. In common law countries, they assume criminal
jurisdiction committed by their nationals only in relation to serious crimes. But that is not the
case in civil law countries.

Passive personality principle; in this case, a state will have a right of jurisdiction not because of
the offender is its national but because the victim is its national. So, a passive personality
principle allows a state to assume jurisdiction where the victim who the crime affect is its
national.

Protective principle; in this case, international law allows a state to assume jurisdiction over
aliens or foreign national who have committed an act abroad prejudicial to the security of a
particular state where the crime committed is against the security of the state. Assume this real
case, for example, 15 or 20 years back, there was an attempted assassination against the former
Egyptian President Hosni Mubarak herein Ethiopia. Now if Egypt would like to prosecute for
that attempted assassination undertaken in Ethiopia and those who perpetrated that particular
crimes are foreigners, what would be a ground for Egypt to assume jurisdiction?

It seems that it is possible to argue on the grounds of passive personality (for the victim is Hosni
Mubarak, an Egyptian national) and protective principle (for the victim is the president of Egypt
the death of whom could obviously a threat to Egyptian security). But, our instructor would say
the protective principle is much acceptable and pertinent to the case. This is because; the head of
the state is not an ordinary individual like Dr. Mizane. He is a representative of a state. So, what
is being done against him will be considered as an attack against the very nation that he
represents (Egypt in this particular case).

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Universality principle; this is a principle that allows every and each nation to assume a
jurisdiction over a suspected criminal. All states of the world will have jurisdiction. The kinds of
crimes on which a universal jurisdiction can be assumed are very few and in fact they are
international crimes. International crimes may arise as a result of breach of international
customary law or breach of international human right law or international humanitarian law. If
an individual is found of committed any of war crimes in international humanitarian law, for
instance, any country irrespective of that country is a national state, where a crime is committed
or the victims are its nationals will have jurisdiction. There are also other crimes like torture
which could be considered as international crimes. Torture is now an absolute right. Drug
Trafficking, air Hijacking, slavery, genocide, piracy and others could also be considered as
international crimes. Generally, these kinds of international crimes give a state universal
jurisdiction.

Finally, a question may arise as to which country will have a prior jurisdiction when all countries
have a jurisdiction over certain matter? No matter how a lot of countries have jurisdiction, then, a
country in which the offender is found will have an actual jurisdiction. This is, indeed, why our
next topic, extradition, is important. So, if Mr. Adane commits a torture and he is found out to be
in Ethiopia, then, Ethiopian courts will assume jurisdiction. Of course, Ethiopia has two
obligations: either to prosecute or extradite. Although a country might have a criminal
jurisdiction, a country that will have priority to entertain a case will practically be determined is
based on where the offender is found. That country will either prosecute or extradite the
offender. It is, therefore, possible to conclude that there is no hierarchical relationship between
the grounds of having criminal jurisdiction that we have mentioned above.

Extradition:

Extradition is a practice that enables a state to handover a suspected or convicted criminal to

another state. So, it is a practice of handing over a suspected or convicted criminal from state A,
France to state B, Saudi. Extradition is purely based on bilateral treaty. There is no multilateral
treaty on extradition nor is it governed by a custom. It is simply treaty based, bilateral treaty. It
is, therefore, important to note here that there is no obligation emanating from customary
international law in relation to extradition.

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So, there is no duty to extradite criminal under international law unless states interred into
bilateral treaties. We have already said that extradition is a sovereign matter and if an offender is
found in state A’s territory, it has a control of its territory and thereby state A is not bound to
extradite. States will only bound to do so only when they are consented by bilateral treaties to do
that. Since there is no multilateral treaty or customary international law, it is difficult to pin point
principles governing extradition. To talk principles of extradition, we will base ourselves on
bilateral treaties concluded between different nations or principles common to most bilateral
treaties. Indeed, united nation, once upon a time, has issued a model extradition treaty. This
being said, it is possible to pin point the following elements of extradition:

Extradition may take two forms: list or dual extradite treaty. In case of list, the countries will
mention their treaty the kind of crimes on which extradition takes place. So, extradition will
takes place if the offender commits certain crimes of those countries including torture, homicide,
excluding pity offence, etc. depending upon the agreement. Dual treaties basically talks about a
situation whereby the act committed is a crime in both countries. So, extradition will be
applicable only where a committed act is a crime in both countries. If an act is a crime in one
country but not in other, then, the state where the offender is found is not be bound to handover
the suspected or convicted criminal.

Conditions of extraditing criminals:

There are conditions based on which extradition is applicable from the experience of countries
and assessments of bilateral extradition treaties concluded by countries. First, there are, for
example, treaties that require a crime in question are serious crime. Second, the existence of
strong evidence by a country that seeks extradition. Third, there are some countries which
require a guarantee of fair trial. Once they have handover the criminal, they need to have a
guarantee of fair trial. Fourth, if an offender is already punished for the same crime, then,
extradition is not allowed. Fifth, there has to be a proportional punishment to the crime
committed. For example, life imprisonment for theft is not said to be proportional.

Although the above conditions are said to be restrictions, there are also some other additional
restrictions of extradition. Many countries deny extradition if the offence is a political offence. A
question would be arising then, what kinds of crimes are said to be a political offence? Treason,

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criticizing government on newspapers or any media outlets, could be considered as political
crimes and many countries would refuse to extradite those criminals.

There are also restrictions based on the kind of penalties imposed; many countries will not allow
extradition if a death penalty would be imposed. Other which may be the most important
restriction is that most countries will not allow their nationals to be extradited.

Immunity from jurisdiction:

We have said that a state have jurisdiction for its sovereignty. Under international law, however,
certain circumstances or individuals have immunity from jurisdiction. It means that in relation to
these exceptional jurisdictions, the state cannot have jurisdiction.

There are basically three types of jurisdiction in international law. These are: sovereign or state
immunity, diplomatic immunity and immunity of international organizations. So, in relation to
these categories, a state may be prevented from assuming jurisdiction.

Sovereign immunity; this is an immunity enjoyed by head of states and governments or top
officials. Even if these individuals commit crime in other country, they will not be prosecuted
nor be they punished in that state. Sovereign immunity is attributable to independence or equality
of the state. So, these head of states or governments are immune from criminal as well as civil
jurisdiction of countries except where in a civil case pertaining to their personal property.

Diplomatic immunity; this one is extended to diplomatic agents, their staff to a limited extent,
consuls or workers of consulates, etc. the justification is different from that of sovereign
immunity. The justification here is that to enable the immune bodies to function properly or
efficiently.

Immunity of international organizations; the kind of immunity that international organizations

enjoy is also functional. It is to enable those international organizations to discharge their duties
efficiently. It is actually based on agreement that has to be concluded. In relation to UN, for
example, there is a treaty that has been signed between the UN and its members in 1946. For
other organizations, there is also a headquarter agreement. Headquarter agreement; for example,
can be concluded between Ethiopia and African Union so that the officials of African Union
enjoy immunities and privileges.

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56
State responsibility

Before dealing with the issue of state responsibility, one should refresh his memory of individual
responsibility under domestic laws. Every domestic laws particularly substantive law tries to
identify different duties of individuals. When the duty bearers fail to discharge their obligation,
they have the right to require certain states to remedy. It means that individuals who breach his
responsibility will be legally liable.

That liability of individuals can obviously be arising from various sources of law under domestic
law. It may arise from family law; family law, for example, provides rights and duties of spouse,
guardians or tutors, tort law, contract law, etc. generally, in all cases where an individual fails to
live up his/her obligation, there would be a legal liability.

Similar concept is incorporated under international law. State responsibility comes into the scene
where the state fails to live up or abide by its obligation. As we have discussed when we talk
about source of law, states have a lot of duties as much as it has a lot of rights as subject of
international law. That obligation may arise from treaties, customary international law or from
other sources of law. So, in all these cases, the states may assume responsibility. If that
responsibility is not discharged, then, state responsibility will come.

State responsibility is a liability of a state under international law. Of course, as we will discuss,
there are certain condition and factors that has to be met. International law first set the rules,
defines obligations and it moves on to defining the rules how and under what conditions the state
will be liable where the state fails to comply with the rules. Before moving to the conditions, it is
important to note some terms which are provided in international law. These terms include:
international obligation, primary rules, secondary rules, international wrongful act, injury, etc.

International obligation: it is an obligation under international law by one state to another.

Primary rules: These are rules of international law which determine whether there is a breach of
a law or not. Primary rules determine whether the state has breached or live up its obligation that
emanate from treaty, custom or other sources of international law which are not provided under
art. 38 of the ICJ statue or not.

Secondary rules: these are different from primary rules in that secondary rules are rules which
determine whether a breach of primary obligations is attributed to a state or not. So, they are

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different from primary rules in a sense that they tell us the conditions under which a certain act is
attributed to a state. The relationship is that the primary rules tell us whether there is a breach or
not. Once the breach is ascertained, secondary rules will tell us whether that particular act or
conduct is attributed to the state and determine the legal consequence thereof.

International wrongful act: it is a breach of primary obligation attributed to the state or it is a

breach of international law. But note must be taken that a breach of international law does not
automatically constitute international wrongful act unless it can be attributable to the state. So, if
we have a certain breach of custom or a breach of treaty is it bilateral of multilateral and that
breach can be attributed to the state, then, that constitute an internationally wrongful act.

Injury: it is the effect of wrongful act. So, there is certain wrongful act and that wrongful act may
cause something, which is, indeed, injury. Injured state is a state harmed by the injury. Rules that
govern state responsibility under international law:

The rules governing state responsibilities nowadays are the draft article on state responsibility for
internationally wrongful acts. The International Law commission, in 2001, drafted an article on
state responsibility for wrongful acts. It is worth noting that International Law Commission
(ILC) is an organ of the United Nations established by the general assembly with a view to
developing and codifying international law. It is on the basis of this arrangement that this organ
come up with the draft article of state responsibility in 2001. As you may see, it is a draft article
and thereby, has a soft law status. But it is having more than a soft law status for two reasons:
first, it is believed to codify the existing custom and second, it is already applied by international
tribunals or judicial bodies like the ICJ.

So, this draft article on state responsibility for internationally wrongful acts is secondary rules.
Secondary rules in a sense that it tells us whether a certain breach can be attributed to the state
and it tells us the legal consequence. When we talk about the draft article and customary
international law, we also talk about the primary rules in terms of custom and treaties because
customs and international treaties also do tell us whether there is a breach or not.

If we see the specific articles of the draft article, they tell us the conditions that to be met for
state responsibility to arise. In particular, art. 1-3 of this article can tell us what conditions has to
be met for a state to be liable under international law. It says in particular under art. 1 that every

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international wrongful act will give rise to state responsibility. From this article, it is crystal clear
that under international law states will be responsible when there is an internationally wrongful
act. Therefore, the existence of an internationally wrongful act is the prerequisite to say that a
state is held liable under international law.

A question would arise then, if every international wrongful act will bring state responsibility,
what is meant by “internationally wrongful act”? Art. 2 of the same article defines, an
internationally wrongful act arises when the conduct which could obviously be either
commission or omission in criminal law, is attributed to that state under international law. So
first, for certain state to be in a wrongful position, the condition is that the act has to be
attributable to a state. Second, that act should also constitute a breach of international law. There
are two conditions in order to say that there is an international wrongful act: An act or omission
has to be imputed to a state if the act of commission or omission amounts to breach of
international law and that breach has to be attributable to a state.

The draft article does not clearly provide whether that act has to be with necessary intent or
negligence. That can basically be determined having a look at what the primary rules say. As a
matter of fact, academic debates favor the principle of objective responsibility as opposed to
principle of subjective responsibility. The principle of objective responsibility tells us that the
state has a responsibility regardless of the fact that it committed the action in bad faith: it could
be incidentally. On the other hand, there are scholars who favor the other way round. Arguing for
subjective responsibility, they would like to exclude all actions committed or omitted without
having a bad intent. So, they only make a state responsible if the act is done intentionally, not
negligently.

In order to assume state responsibility, the existence of actual damage is not a requirement unless
a specific rule under customary international law or treaties provide the same. It does not matter
whether the conduct is lawful or unlawful under domestic law. The fact that the action is lawful
or unlawful in under internal law does not matter. It is simply because; the state has to be bound
by international treaties and customary laws. We have already said that domestic law cannot be
invoked before international tribunals.

Attribution of conduct to a state:

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This is the first requirement of internationally wrongful act. The first question with this regard is
that why do we need to attribute a conduct to the state? In domestic law, for example, for
criminal law of individuals like Husen it is not a condition to attribute a conduct. But in
international law, for states responsibility, it is a must that the conduct in question has to be
attributed to the state. Why? Is the question after all.

Because states are not living entities like human beings, it is the act of individuals or humans that
will be affiliated to the act of state simply because like corporations, states are not natural
persons rather they are artificial persons. We give them international personality out of legal
convenience by fictitious of the law. Otherwise, strictly speaking, only human beings have
personality by virtue of birth and even conception sometimes. So, the doctrine of atributability
provides that the state will be liable for internationally wrongful act when certain individuals
conduct can be taken as an act of the state.

The next question is whose act is attributable to the state?

First of all, a state is liable where its government organs or government officials breach an
international law. So, the government organ should be any of the government organs; it could be
the judiciary, executive or legislative. And also at any level; regional, federal, zonal, district, etc.
it does not make a distinction between higher and lower officials as long as they are government
officials.

Where we have persons or entities, in fact as government organs, even if they are not classified
as such by internal law. So, the internal laws of a state may not regard certain individuals or
entities as government entities. But if they act as government organ, then, their act is attributable
to the state. Note that this is different from the first one in a sense that in the second case,
although internal laws do not categorize them either in a category of legislative, executive or
judiciary, they act as a government organ. So, what matters in the second case is that individuals
have carried an act of a government organ though the internal law does not categorize them as
such.

It is, however, worth noting that if a certain government official commits a certain conduct
which is purely on private setting, then, that cannot be attributable to the state. We have

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government officials and government organs but acts of them in private settings do not give rise
to the issue of imputability.

Governmental authority; the conduct of persons or entities that are not organs but empowered by
internal law to exercise elements of governmental authority can be attributable to the state. So,
this one is a distinct one. These individuals are not government organs but empowered by
internal law to exercise act of government organ. Internal laws allow them to exercise
governmental authority though they are not government organs stricto senso. Here what matters
is their actual activity.

Directions or control; it is an act whereby the government instruct or direct ordinary citizens to
commit certain act. When an individual commit a certain act under the instruction, effective
control or direction of a state in question, the act of private individuals can be attributable to the
state. In this regard, it is important to remember the decision of the ICJ in Nicaragua case. The
US used to assist rebellions in Nicaragua. The issue was whether the United States was under
control or direct instruction of the group or not. The court at the end of the day reasoned that the
United States, indeed, assisted rebel group in terms of funding them. The court reaches to a
conclusion that it does not amount to giving direct instruction. The position of the court is the
kind of assistance which has to be immediate and there has to be a close connection between the
state and the entity in question that has been engaged in certain conduct.

We have said that a state is not liable for an act of private individuals including rebel groups
unless the state has effective control and gives specific direction to them; such as planning an
attack, etc. So, under the existing international law, passive support is not sufficient to attribute
an act of rebel groups to the state. However, in the advent of terrorism, according to some
writers, this has to be changed or has been changed though not accepted by all. The idea is that
when we come to terrorism and its ritual consequences, the traditional and stringent requirements
has to be relaxed. In relation to terrorism cases, it should not be a requirement that the state has
to effectively control the terrorists. It suffices if the state even extended a passive support in
terms of encouragement, for example. This is actually the argument in new international law
books and that is why we are raising here.

There is one problem in this regard as of considering some groups as terrorists. This is because; a
terrorist in one country may be taken as a freedom fighter in some other. Take, for example,

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Hamas. Hamas is “obviously” (mine, Husen, quoted words hereinafter in this sentence including
the above one are not representing our instructor) a freedom fighter for Palestine but, it is
“foolishly” taken by some “foolish countries which they themselves are terroring the people of
Palestine, being a practical terrorist thereof”, as a terrorist organization. So, that controversy may
overshadow this new suggestion or argument. Otherwise, there are new developments in this
area.

A breach of international law:

We have mentioned earlier that an international wrongful act exists; 1. When the conduct is
attributable to the state but that by itself is not sufficient, and 2. That conduct has to be a breach
of international law. So, even if a conduct is attributable to the state, the conduct may not be a
wrongful act unless it is a breach of international law. According to art. 12 of the draft article the
act has to be not inconformity with what is required of the state by that obligation regardless of
the ordinary character of the same. So, there has to be a breach of obligation regardless of its
source. The source, as we have already stated in the foregoing pages, could be a treaty, custom or
any other additional source of international law.

We may have a certain conduct that is attributable to the state and that may constitute a breach of
an international law but the state can still avoid responsibility if any circumstance arises that
preclude wrongfulness. There are circumstances precluding wrongfulness. So, the fact that there
is a breach of international law which is attributable to the state does not mean that the state is
automatically held liable under international law. It could not be liable if there is any
circumstance that can preclude wrongfulness. In other words, it means that there are defenses
that the state can raise even if a conduct amounts to breach of international law and which is
attributable to the state.

Defenses that a state can raise to avoid state responsibility:

Consent; if the injured state consented to a certain sort of action by another state, a state that is in
breach of international law cannot be held liable for the obvious reason that the other has been
consented to that act or it is done through the consent of an injured state. This defense is
provided under art. 20 of the draft article on state responsibility for breach of international
wrongful act.

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For example, a state may allow for a foreign military aircraft to inter into its territory. In
principle, a foreign military aircraft cannot inter into the territory of another country for the
obvious reason that the air space superjacent to the territory is with the territorial jurisdiction of a
given state. So, if a given military aircraft has come, that amount to a violation of principle of
territorial sovereignty. If the state, however, consents and allows a military aircraft to land or to
use it, that consent precludes such wrongful act.

Self-defense as provided under art. 21 of the UN Charter; a state may resort to self-defense
although that act of self-defense can be regarded as a breach of international law and is
attributable to the state. It is excluded as long as it is undertaken within the limit of self-defense
as provided under international law.

Force majeure; it is provided under art. 23 of the draft article. It provides: force majeure applies
when an act is carried out in response to an occurrence of forceful events beyond the control of
the state and make it materially impossible the circumstance to perform the obligation. So, if that
force majeure renders a state not to comply with international obligation, wrongfulness is
precluded. Taking the same example of aircraft, if a bad weather forces a military aircraft to
divert to the territorial boundary of a given state because that action arises from unforeseeable
and monstrous event, the state is excused and can raise force majeure as a proper defense.

Distress; distress as a defense and one circumstance to preclude wrongful act is provided under
art. 24 of the draft article. According to this defense, an act is not wrongful if the committer has
no other reasonable way, in situation of distress of saving his/her life or that of other’s entrusted
to his/her care. So, a distressful act is undertaken in response to saving the life of him/her or
other’s. So, in saving the life of other’s, an organ of the state or the state itself may breach an
international law. But that is excused for the defense of distress.

Necessity; though it can be assimilated with that of distress, this defense is the modern form of
distress. In this case, if an act is committed by the state which amounts to breach of international
law in order to save the vital interest of the state, that is again considered as a defense. Here there
is a contradiction between the state’s international obligation and the state’s tendency to
safeguard its vital interest. So, international law allows the state can breach international law
with a view to safeguard or saving its vital interest from a certain unforeseeable and irresistible
force.

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The question would be arising then, as to what kind of interest are said to be vital? It can be
subject to debate. But this could include, for example, protection of environmental disaster, vital
economic interest of the state; there is, for example, an illustration provided in international law
text books, the UK launched an attack and burned a super tanker of Liberia which is filled by oil.
And the UK’s act was comanderd because that super tanker was about to submerge. If it is to
submerge, it would have a devastating consequence to the coastal line of the UK. So, in order to
avoid the environmental disaster in the costal line of the UK, the UK has heated and burned for
the reason that if it is burned, there is no room for pollution.

All these exceptions of consent, self-defense, force majeure, distress and necessity being raised,
it is important to note the following exception again. A defense cannot arise if international law
breached is jus cojence because we have said that jus cojence is almost untouchable. So, a state
cannot invoke either of these grounds to preclude wrongfulness if the state has breached an
obligation that tantamount to a jus cojence.

Legal consequences of state responsibility:

First, it is important to note that if there is no defense that legal consequences apply. It is up to
the state to prove that there is a circumstance precluding a wrongful act. Therefore, the burden of
proof is on the part of the state claiming that it breached international owing to one of these
circumstances. That cannot be presumed after all.

The obligation that a state responsibility for wrongful act entails is the following:

Secession, seize or termination of the ongoing act; in this case, the state acting wrongfully is duty
bound to seize or terminate its act.

Assurances and guarantees of non-repetition; if the act is a serious violation of international law,
the state that engaged in wrongful act is supposed to provide an assurance or guarantee not to
repeat that act.

Reparation; reparation as a legal consequence of international wrongful act is provided under art.
31 of the draft article. The state that engaged in international wrongful act has an obligation to
make full reparation for the injured by international wrongful act. We have stated that an
international wrongful act may cause a moral or material damage. The state in question is

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supposed to make reparation with a view to clear out all the injuries that arise from an
international wrongful act. The reparation could be in the form of restitution as provided under
art. 35 of the draft article, compensation for financially assessable damage and satisfaction for
damages that are not financially assessable.

The final point has to be made with regard to the scope of the draft article on state responsibility
for internationally wrongful act. These legal consequences are not applicable where these matters
are applicable and governed by a specific treaty or customary international law. So, the issue of
legal liability in terms of sanction for the breach of international law is, for example, already
stated in the UN charter and it need not be restated in the draft article thereof for those legal
consequences have a priority over the consequences regulated under the draft article. In all areas
where a customary international law or treaty law governs the issue of secondary rules in terms
of attribution and legal consequence of the breach, those specific laws will prevail over the draft
article.

Remember that a wrongful act may be directed against the state in question or against its
national. So, there are two possibilities. It can be committed against the state in case of, for
example, aggression. In case of aggression, the wrongful act or the breach of international law is
directed against the state itself. Direct commission may also arise where the government agents
suffer an injury. For example, diplomats are taken as hostages.

But on the other hand, an injury to the state may arise where one of its citizens suffer injury. In
this case, a state whose citizens have been victims of breach of international law may get
diplomatic protection. So, the term diplomatic protection has to be used in this section.

It refers to the protection that the state extends to its nationals for breach of international law. So,
when we talk about injury, we are not referring only to a direct attack against the state but also a
direct attack against the nationals of the state. So, in those cases, the state may extend diplomatic
protections to citizens who have been suffered injury in other states. But, diplomatic protection
can be extended where the state has a capacity to allow the claim of the injured state. So, the
injured state may be taken as the injury of the state itself. In other words, diplomatic protection
will arise where the state has a capacity to adopt the claim of its national as its own. There are,
therefore, situations whereby we assimilate the injury of a national to the national state in which
a diplomatic protection can be extended.

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Grounds on which a state may acquire a capacity to adopt the claim of an injured state against
another state:

There are two conditions under international law which are provided under art. 44 of the draft
article. In other words, a state may extend diplomatic protection to its national where two
conditions are met. These are: 1. where a nationality requirement is met and 2. The exertion of
local remedy. So, when these conditions are cumulatively met that the state can adopt the injury
of its national to its own.

Nationality requirement; this principle simply requires that diplomatic protection can be
extended only when an individual that has suffered an injury is a national of that state. So, the
individual that suffers injury in the hands of another state has to be a national state who seeks to
extend diplomatic protection.

Once the state adopted the claim of its citizens as its own, that act will be, for all practical
purposes, considered as an injury of the states or as it directed injured by that breach of
international law.

Note that the state does not have an obligation to extend diplomatic protection. So, diplomatic
protection is absolutely dependent upon the willing of the state. The state, if it wishes, can extend
diplomatic protection and adopt the claim of its citizens against another states as its own. It is,
however, worth noting that there is no legal duty either emanating from customary international
law or draft article on state responsibility that the state is bound to adopt the claims of its
citizens.

One additional point that we need to raise in this regard is the issue of dual or multi nationality.
Under international law one cannot avoid a possibility whereby a person may acquire double or
multiple nationalities. The question, to this end, may arise as to which state has the right to
extend diplomatic protection. Because, if, for example, we have an individual called Adane and
he is by virtue of double nationality is a national of Ethiopia and France, the question would arise
then, as which state is given to the right to extend diplomatic protection to Mr. Adane, France or
Ethiopia.

If we look at the best authority for this issue, the Nottebohm case, as to which state will be in a
position to extend nationality will be determined by having regard to the extent to which a person

66
has mooning to that country. So, the concept of genuinely has been the rule by ICJ. In the case
between Guatemala and Liechtenstein were interested in Nottebohm. When the ICJ decided the
case, it came up with the concept of genuinely in terms of an area where the person habitually
resides, undertakes his/her business and etc.

This concept can be analogized with the concept of habitual residence in law of person.
Remember we have learned in law of person that there is a possibility under Ethiopian civil code
that a person might have several residences. So, for various laws including our civil code, what is
preferred is the habitual residence of a person.

So, there is a similar concept in international law with actually a bit different expression
“genuinely.” A country can genuinely extend a diplomatic jurisdiction to that person. Note that
also this is factually true. Some individuals might may have a citizenship of state a but for only
their concept of naturalization. They do not have business management there, families residing
there, etc. in this case, acquisition of nationality is symbolic in the sense that there is no any
connection to say that the person has been granted nationality in which case, the highly
appropriate and reasonable to allow a country to state more genuinely to extend diplomatic
protection and deny the other country from doing the same.

Exertion of all local remedies:

This is the second requirement for which a country is required to meet where it needs to extend
diplomatic protection to its citizens in addition to the requirement of nationality. Exertion of
local remedies is one of the rules of customary international law and found in every branch of
international law. In the real case where Ethiopian citizens were suffered a psychological,
Physical and economical suffering in Saudi Arabia. If Ethiopia wishes to extend a diplomatic
protection to those nationals in Saudi, the first thing that has to be done is to seek all remedies in
Saudi Arabia. It is not possible to escape that remedy and resorted to the ICJ.

As mentioned earlier, however, there are a lot of exceptions to this principle of Exertion of all
available local remedies. The exceptions where the state can extend diplomatic protection and
invoke state responsibility without exhausting local remedies include:

Lack of an effective remedy; we may have remedy in principle but cannot be effective for
various reasons; lack of legal aid, for example. Some ordinary individuals may not know the

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technicality of the laws. If there is no legal aid in such instances, it can be said that there is a lack
of effective remedy there is a local remedy, though.

Unavailability of remedies; Ouster closes are, for instance law in Ethiopia. Ouster laws are laws
that oust the power of the court to oversee administrative decisions. Now, for example, in the
charity and society proclamation, if the charities and societies agency entertained a certain matter
and decide on a foreign NGO, the foreign NGO is prohibited from appealing to regular courts.
This is obviously an oustered close. So, where there is an oustered close, individuals do not be
bound to exert local remedies for that remedy is totally unavailable.

Prolonged effective remedy; the third exception is where an effective remedy is prolonged for
months or years unreasonably to dispose the same. Here it is important to note the saying that
“justice delayed is justice denied”. The point here is, if a remedy is delayed or prolonged
unreasonable; individuals are allowed to resort to international tribunals.

A question may arise then, why we force to exhaust domestic remedies? For example, In case of
human right violations, if an individual has been suffered of human right violations in the hands
of government officials, isn’t it a double mistake to refer the same individual to pray the same
government officials for remedies especially where government officials deliberately perpetrate
that action? There are actually three justifications for the rational to exertion of domestic
remedies. These are:

 To give a state a chance to correct its mistake; the state has to be given an opportunity to
correct its mistake. If a country has committed a wrongful act, that country has to be
given an opportunity to rectify or remedy that wrongful act.
 To respect the sovereignty of the state;

To allow domestic court to fill the gap of international tribunals; if we simply allow bypassing
domestic remedies, international courts will not able to dispose cases in the time expected of
them to do the same. Note must be taken that most international tribunals other than the ICJ are
part-timers institutions and they meet three or four times a year. So, we need to have a flittery
mechanism so that only those cases that do not get remedy under domestic laws will be taken to
these courts.

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Generally, in respect to diplomatic protection where individuals suffer an injury in other country,
the national state extends protection., we must, however, take note of the fact that this is not the
only circumstance for the obvious reason that there are mechanisms whereby individuals
themselves can take actions against the state under international law nowadays. Under traditional
international law, where the state domination is significant and since individuals are considered
as objects of international law, individuals were not entirely allowed to take their matter to
international courts. It is, therefore, possible to conclude that diplomatic protection is more
important in traditional international law than todays. Nowadays, because of increasing
acceptance of individuals as subject of international law, individuals are, in some case, allowed
to take their matter before international tribunals. So, it is clear that diplomatic protection is still
relevant but its relevance is bit reduced because of the conforming nature of international law.

This can be specially exemplified by the regime of international investment law. International
investment law traditionally has to benefit diplomatic protection. However, these days
arrangement is that even individuals or the investors can take the matter before international
arbitration tribunals. They are allowed to do so by bilateral investment treaties and concession
agreements that have been concluded by states.

Treatment of aliens:

This is again related to state responsibility. What we have said in relation to diplomatic
protection is that if a national of state A has been injured by state B or if the nationals of state A
are mistreated or threatened in contrary to international law, state A can extend diplomatic
protection. Put it in other words, if a certain state does not treat foreigners as provided under
international law that would be a ground for state responsibility because that is a wrongful act or
a breach of international law. So, the way state treat foreign nationals can still be discussed under
the umbrella of state responsibility since that can be a ground for state responsibility.

It can be said that this is one of the controversial areas under international law. How should the
state treat aliens is a controversial area for the reason that it is difficult to set the standard of
treating foreigners. For example, there are a lot of foreigners in Ethiopia other than state
representatives. What is the standard of protection or treatment of these people is a very
controversial area which developing and developed countries have taken different positions. This
is one of the areas on which developed and developing countries do not agree.

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The position of developing as well as communist states is that they want to reduce what they
regarded as a privilege according to capitalist state by international law. The very argument at
the heart of the position of developing and communist countries is that developed countries and
their citizens should not have a privileged position when they are residing in developing
countries or do business in developing countries. The background for this stand is that at least in
earlier times and quite often, the nationals of developed states move to developing states to
invest. So, developed states would like to protect their nationals while they are residing in
developing nations. In the former times, developing nations were hosts of nationals of developed
nations. One thing they want to make sure is that this people do not get a privileged position. So,
their emphasis is based on sovereignty of the state and independent of the state.

On the other hand, however, the western nations, because they have their companies and
nationals investing and residing in developing states wish to protect their investment and
nationals abroad and provide for the security of their property or they need more security. So for
this background, there were variant positions that are being entertained by developing and
developed nations.

To this end, what developed states say is that where their nationals reside abroad or generally
aliens, they have to be treated according to international minimum standard of treatment. So, the
position of developed nations is treatment with international minimum standard because they are
highly eager to secure their investment in developing nations. This international minimum
standard of treatment could be a standard of treatment higher than a developing nations uses for
its citizens. It could be a more rigorous than the standard of treatment that a government makes
to its citizens.

On the other hand, however, developing nations agree to a position that what they need to do is
to treat aliens as equal with its own nationals. So, the standard which developing nations would
like to employ is the same treatment as their citizens. They say, “We will be committed to
protect foreigners in the same manner as we treat our nationals.” The purpose to be achieved
from this is, to minimize western’s influence and interference in the domestic affairs of
developing nations. This is because; if we have a certain minimum international standard, it is
clear that it can override national standards.

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Particularly, this issue was highly entertained in South American countries; they were highly
disappointed by western’s domination and preoccupation of having more rigorous standards for
its citizens. To this end, they come up with calvo doctrine. Calvo doctrine is about the foreign
and it seeks to reaffirm the principle of non-intervention.

Even if we agree to the standard of treatment of aliens to be a minimum international standard

with the presence of opposing stand, there is still a problem with regard to determining the
international minimum standards. If a foreigner is entitled to an international minimum standard
treatment, which would be different from the standard that has been stipulated under national
law, what are those minimum standards is the question. Of course there are certain matters that
writers suggest as standards of international minimum standards. For example, in case where a
foreigner’s property or investment is expropriated, access to adequate and effective
compensation is the right to that foreigner. It is, however, still worth noting that a foreign
individual or company has to the right to adequate, proper and effective compensation upon
confiscation or expropriation of his/its property or investment does not attain the status of
customary international law. There is also a requirement as of guarantying fair trial.

So, there are certain suggestions by writers in order to give detail as to what constitute
international minimum standard. However, some of these have never been accepted as
international principles and not upgraded as international minimum standards. In the advent of
international human right law, however, it is possible to argue that human right standards can be
taken as international minimum standards. So, developed countries may require developing
countries to respect human rights of their nationals where they are doing business or simply
residing in other countries. It is, however, possible to finally conclude that foreigners are entitled
to more protection than nationals does not have any support nowadays.

But if we look at investment treaties, we do not find the principle of international minimum
standard. Of course, we may find the concept of “national standard treatment”. The national
treatment standard provides that a foreign investor is given an equal treatment as domestic
investors. The other treatment standard is “the most favored nation (MFN)”. In international
trade, if we give more protection for investors coming from state a, investors from state B will be
entitled to the same protection.

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State succession

In international law, state succession is one of the most important issues that need to be
discussed thoroughly. In the following pages, we will try to discuss two important issues that
deserve due care in relation to state succession.

Circumstances that give rise to state succession in international law:

Under this sub-topic, we will try to give an answer to the question “when does the issue of state
succession arise?” there are certain circumstances whereby one state succeeds the other.

Exclusions; state succession will not arise for the simple fact that the state has changed its name.
So, change of name is not one of the circumstances which give rise to state succession. The same
is true when the state changes its constitution, the supreme law of the land. It could be
constitution providing for authoritarian regime or democratic regime but that does not still
matter. Change of government does not still give rise to state succession. It follows from these
exceptions that state succession will only arise where a certain situation arise that can affect the
international personality of a given state. It has to do with factors affecting international
personality of the state.

Malcom N Shaw defines state succession as the replacement of one state by another in the
responsibility for the international relation of territory. Of course, states do not only succeed
responsibilities, they may have also rights. To this end, the definition of Shaw could be criticized
in a sense that it does not capture all the elements of state succession. State succession is a
phenomenon whereby rights and obligations of one state will bypass to another. It is about
devolution of the rights and obligations of one state over the other.

In state succession, we have two states, the predecessor state and the successor state. The
predecessor state is the parent state from which a new state created or from which a territory is
transferred to another; it is an older state whose international personality is affected. As to
analogy, this is similar to a dead person in domestic law; we may have an absolute and partial
death in international law, though.

Whereas, a successor state is the state that inherits the inheritor, the predecessor state; this is the
state that inherits the rights and obligations of the parent state.

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Then the question is, what are the rules governing a state successions? What kind of treaties is
inherited by the new state? We have branches of categories, in which category of treaties a new
state supposed to inherit? Which property of a predecessor state shall pass to a new state?

From theoretical point of view, there are two opposing positions with regard to whether or not a
new state should inherit the rights and obligations of a predecessor states and the practice is
actually in between. These are the clean slate or discontinuity and continuity theory.

The clean slate theory; according to the clean slate position, the successor state should assume
none of the rights and obligations of the predecessor state. It advocates for no transfer of rights
and obligations and a new state should start from a clean background.

Continuity theory; according to this theory, the successor state should assume all rights and
obligations of the predecessors. This is because; international law requires continuity and
certainty. It is, therefore, possible to say from the review of these positions that they are
extremely different positions though the practice does not entirely support either of these
theories.

Rules governing state succession under international law:

State succession is a set of rules that govern the extent to which the right and duties of the
predecessor state shall have pass to the new state. Those sets of rules include:

Customary law; customary law governs state succession in the area of territorial treaties and
other subject matter.

Vienna convention on state succession in respect of treaties; as it is easily understandable from

its name, this treaty governs the extent to which the rights and obligations in treaties shall extend
to the predecessor state. A predecessor state may be a party to a number of treaties and this treaty
govern the extent to which the successor state inherits the rights and obligations incorporated in
those treaties.

Vienna convention on state succession in respect of property, archives and debts;

Even if we have these two treaties, they are not reliable and nor are they entirely a reflection of
customary law. Some of the provisions may reflect customary international law but some others
are new provisions that were added without having adequate support. The problem is that the

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first convention, Vienna convention on state succession in respect of treaties has been interred
into force but it has very few member states, whereas the later convention in respect of property,
archives and debts has not yet interred into force because of minimum ratification requirement.
Given all these circumstances, international lawyers do agree that state succession is an area
where the laws are not clear. We have already established that when we talk about state
succession, we take into account customary international law and the two Vienna conventions on
state succession in relation to treaties and in relation to property, archives, and debts. These are
the authorities or sets of rules that we base ourselves upon while talking about state succession.
But these have to be accompanied by opinions of famous writers.

It is duely provided by some scholars that all these rules of international law on state succession
are applicable in the absence of agreement. It is only in the absence of agreement that rules of
state succession apply. It means that they are gap fillers. Agreement may be concluded by newly
created state, for example, by devolution. It can also be an agreement between another state a
party to that treaty and a new state. So, the agreement should not necessarily be between a
predecessor and successor state. The argument which is at the heart of state succession is that we
apply the other rules when an agreement does not exist.

Grounds that give rise to state succession under international law:

Secession; it is a circumstance where a new state emerge from a predecessor state. It takes some
territory from a predecessor state and become a new sovereign state. To the extent that the new
territory forms a new state, succession issue will arise. To what extent the separated new
sovereign state can inherit the predecessor state. For example, Singapore was seceded from
Malaysia in 1965, Bangladesh from Pakistan in 1971, and etc.

Dissolution of the state; a state may disintegrate. And there are also examples of dissolution like
Yugoslavia, Czechoslovakia, United Arab Republic of Egypt and Syria, etc. the difference
between secession and dissolution is that in case of secession, the predecessor state continues to
enjoy its international personality. Ethiopia, for instance, continue to exist despite the fact that
Eretria was seceded. While the predecessor state does not exist in case of dissolution. For
example, Czechoslovakia and Yugoslavia do not exist anymore and we do not have countries
called so today.

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Merger; it is a situation whereby the constituent former state and form a new state. The historical
example of merger could be, for instance, Yemen which was primarily existed as south and north
Yemen, Vietnam, Tanzania which is a merger of Tanganyika and Zanzibar.

Absorption; this ground is bestly expressed by the case of Germany. Before 1990, there were two
Germans. The difference between merger and absorption is that in case of merger, the original
states cease to have international personality. A new entity that replaces the former sovereign
states is created. In case of Absorption, the absorbing state continues to have international
personality albeit with reduced territory.

Decolonization; remember, in the colonial area, all the colonies of the colonizers were regarded
as part and parcel of their colonial country. When those colonized state become independent, the
issue of state succession arises.

Cession; it is different from all grounds that we have mentioned before for it is about transfer of
territory from one sovereign state to another.

Principles of state succession:

Before going to anything else, we are primarily required to remember what we have discussed
elsewhere in this note with regard to the reliability or dependability of rules or principles of
international law. We have said that these principles or rules of international law are neither
reliable nor dependable. With all their limits, however, it is possible to extend some general
principles. Secondly, we have to also note that the principles vary in all these grounds of state
succession. In other words, we cannot have a uniform rule or principle of state succession in
secession, dissolution, merger, absorption, decolonization and cession.

Succession to treaties it is the possibility of a new state assuming a treaty obligation and right
over a predecessor state. For example, if Ethiopia was a party to a certain treaty before Eritrea
was separated, the issue is the extent to which Eritrea will be bound by a treaty concluded by its
former parental state, Ethiopia. As we have already stated it in the foregoing discussion, this
issue will be regulated by customary international law and Vienna Convention on state
succession in respect of treaties. This Vienna convention is adopted in 1978 and came into force
in 1996 after the minimum ratification requirement is met. This treaty is responsible to deduce

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some general principles in respect of the kind of treaties that need to be succeeded. These general
principles include:

 Territorial treaties; these treaties are agreements whose subject matter is governing
territorial relationships or territory related matters which may include utilization trans-
boundary river, servitude or the right of one state to use the territory of another state, etc.
between two or more states. So, any treaty that pertains to territory can be taken as one
category.
 Personal or political treaties; and
 Multilateral treaties particularly human right and humanitarian treaties.

Based on these categories, the Vienna convention on state succession in relation to treaties has
set certain general principles to be applied. Whether it is a bilateral or multilateral treaty, one
general rule is that if a subject matter of a treaty is linked to the relationship of predecessor state
with another state, the successor state is not supposed to inherit because these are regarded as
personal treaties. Personal or political treaties are whose subject matter has highly intertwined
with the political relation between the predecessor state and some other states. A treaty of
personal or political nature, for example, could be treaty of alliance which forms a friendship
between states. When a new state is created, that state may no longer interested in that
relationship with another state and wanted to have a its own relationship with some other states
and thereby a new state is not supposed to inherit the same. Another example could also be a
bilateral treaty of extradition, etc. Therefore, in respect to personal treaties, the general rule is
that a new state is not supposed to inherit the rights and obligations that arise from those personal
treaties concluded between a predecessor state and another state.

We have, however, a direct opposite principle in relation to territorial treaties. When a

predecessor state concludes a treaty with another country in relation to territory or territory
related matter, the new state may automatically inherit it. If a given treaty by a predecessor state
has something to do with territory or boundary like for the navigation of trans-boundary Rivers,
it is an automatic requirement for inheriting to a new state without allowing any exception.

This principle is clear and is a reflection of international customary law. In a territorial

agreement, for example, that a colonial master of Sudan has concluded with Ethiopia, will be

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binding between Sudan and Ethiopia. So, in territorial treaty, treaty prevails over the state that
has been created. Even when the state dies, the treaty continues to have effect. The reason arises
from the principle of utti possidetis.

In case of absorption, the treaties of absorbed states will lapse and the treaties concluded by
absorbed states will be extended to the absorbing state. This principle arises from the very nature
of absorption. While in case of merger, most treaties will bind the new state. Because the new
state is emerged and the former sovereign states are no longer there.

In respect of multilateral treaties especially human right and humanitarian treaties, some writers
do argue that a new state has to automatically inherit. However, this argument has little support
or little authorities under international law. However, if a multilateral treaty that purely reflects
customary international law is concluded, the new state is bound to inherit it. So, if there is a
multilateral treaty codifying principle of customary international law, there is no ambiguity as to
automatically inheriting the same. This is because, customary international laws are important
for coexistence of states.

And finally with regard to decolonized states, the new state is not supposed to inherit the treaty
obligation of a predecessor state; it is a clean slate doctrine which applies here. So, those
countries that came out of colonization are not duty bound to inherit the obligation of a
predecessor state. Even these new states are exempted from the two exceptions of territorial
treaty and a treaty with a codification of international customary law which are binding to other
new states which came into existence with all other grounds of state succession other than
decolonization.

Succession of Public Property and Public Debts

The basic rule on succession of public property, there is something that has been laid down by
existing state practice, customary international law and some cases which is also supplemented
by the Vienna Convention on state succession in respect of public property, archive and debts.
We have a separate treaty on that.

Even if we have separate treaties we have two problems. They are in terms of relying on Vienna
Convention on state Succession of public property, archives and debts.

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This convention is not yet enforced and hence doesn’t have a binding effect. It has secured about
six ratifications. It is not sufficient enough to warrant its enforcement. We just rely on it just
because the provisions rules of customary international law.

This treaty does not address multiple questions. Questions arising in respect of state succession
with regard to public property, archives and debts. It does not cover every controversial issue
that needs to be covered.

Another problem, which can also be taken as in a positive manner, this treaty is heavily reliant
on equity. Equity can be, in general terms, a good parameter on how public property, archives
and debts can be apportioned in state succession. How ‘equitable’ is equitable in certain
circumstance may vary. Equity is a very general term which can be abused and may not give the
necessary specific guidelines in specific circumstances.

As we tried to pin point last time, international law as a matter of reality state agree on state
succession. But in the absence of agreement the treaties and in some cases customary
international law provide certain guideline. For example, when the state acquires all the territory
of another it succeeds to all public property of that state. This happens in the case of absorption.
It can also apply in the case of merger. The new state created as a result of merger can take and
will take property on previous state. In regards to succession of property, the first principle is that
in case or merger and absorption the new state will inherit the property of a predecessor state.

On the other hand however, if the state merely lost some of its territory most of the public
property situated in its territory shall belong to it. If the state loses part of its territory, most of
the property situated in the territory of the predecessor shall belong to it. Property situated in the
territory of the new state shall belong to the new state. Territory generally is a very important
parameter to determine which state shall take which property.

In case of immovable property in the territory or the country in which the immovable property
belong shall be entitled to that property. The issue of state succession in relation to immovable
property is not controversial.

In case of movable property, the place where the movable property is situated is very important.
However there are some exceptions. If a certain movable property is connected to a certain
territory. You may have an ‘immovable’ movable territory situated in the predecessor state but

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for its purpose may be connected to the territory that has been created. In such a case that
movable property shall belong to the new state. There is a test of its connection to the territory of
the predecessor state and territory of the new state. This can be exemplified by movable
properties destined for certain purposes like if that movable property is destined for the
construction of a dam. In this case although the property are situated in the predecessor state and
the dam is to be situated in the new state, then the new state will be entitled to this property
simply because this property is connected to that particular purpose or territory. In that regard the
Vienna Convention tries to make a distinction between those movable properties that are
connected to the territory and those that are not.

Now, in regards to public debt, the predecessor state may incur debt for a lot of reasons. As long
as it has been incurred for public purpose then that is a public debt. And when the issue of state
succession arises then ‘who is going to pay that debt?’ is one question. And what the Vienna
Convention on State Succession in respect of this subject matter does provide is that the states
need to agree. In the absence of agreement, the rules can apply in three areas.

There is what you call the ‘National Debt’. It is the debt that has been indebted to the benefit of
the entire nation before the circumstance that gave rise to state succession arose. There are,
however, debts incurred not to the entire territory of the whole country but for certain areas.
Shaw tries to classify these debts as localized debts and local debts. Localized debt is a debt
incurred by the central government of the predecessor state but to the benefit of a certain
territory. The difference between localized debt and local debt is as to who was a contract to the
debt. So if it was agreed by the national government or the predecessor state on the behalf of a
certain region that is localized debt. Local debt is the same as localized debt in the sense that it is
incurred to the benefit of a certain local territory but incurred by that particular region. This can
happen in stated where region has that kind of power to enter into international relationships
including to an agreement that would allow them to enter into creditor-debtor relationship. It
depends upon the kind of constitutional arrangement in that country. International law does not
dedicate whether regional or constituters of a given country have that kind of power.

From this kind of debt one would not be in difficulty to understand how the debt has to be paid.
So who should pay, in case of secession, national debt, local debt and localized debt? Their name
can tell us as to which, whether it is the predecessor state or the new state. The principle

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provided in the Vienna Convention on the law of treaties, in absence of agreement the state debt
of the predecessor state shall pass to the successor state in equitable proportion. What is the
specific parameter to say that a certain share is equitable is not specifically addressed in Vienna
Convention. So you may take various factors into account. The factor could be the population
size. If the predecessor state has the larger population, you may assume that it has benefited to a
large extent and it should take more responsibility. And the new state is imposed upon a lesser
obligation. So in case of national debt, the principle is that they have to be apportioned on
equitable basis. It is not difficult to draw the rules in localized and local debts because it is
incurred to the benefit of a certain region and the region has to pay.

So these are the rules in respect of payment of debt. However, the rule set out provided in the
Vienna Convention do not apply to new states that emanate to colonial subjugation. So with
respect to debts doesn’t apply when the state emanate out of decolonization. They have to start to
a situation whereby they have no debt. So in circumstances where a new state springs out of
colonization the rules do not apply.

The rules also do not apply in case of unity, where two or more states join together and form a
new state in case of merger because in case of merger the debt of the constituent states shall be
paid by the new state. The new state is obliged to pay all the debt. There is no equitable
apportionment in regards of national debt and also there is no region that seceded to be left with
the local or localized debt.

Succession of Membership to International Organizations

The issue is not difficult to comprehend. Is the new state entitled or obliged to claim membership
to the international organization the predecessor state was a party to? Can the new state invoke
the membership of the predecessor state and be automatically admitted to the international
organization in question?

One important rule is that, a new state will not gain succession to any international organization
if the predecessor state still exists. This means it has to apply anew if it requires joining the
international organization. And if it qualifies to be a member based on the constituting
instrument of the international organization in question, then it will be admitted. Thus, the fact

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that was a member of a certain international organization does not guarantee that the new state
will be an automatic member in case where the predecessor state is alive.

In those circumstances that give rise to state succession we can classify them into two. In some
cases the predecessor state is totally extinct. It is replaced two or more new states. But in other
scenarios the older state continues to exist but new states emerge. So the question is what are
those grounds that call for state succession but the predecessor state continues to be alive?

In case of merger and dissolution, if the predecessor state were/was a member of an international
organization the new state would be automatically admitted without submitting a new
application. For example, when Syria and Egypt merged together to form the United Arab
Republic they were not supposed to apply for the membership to the United Nation because of
their original membership. In case of dissolution to as long as the predecessor state was a
member, new states are entitled to the kind of privilege merged state has. Of course in case of
cessation, the new state is supposed to apply so that it cannot enjoy the membership of the
predecessor state.

Another area where state succession will have an impact is on the issue of nationality. Issue of
nationality is one of the areas that have been highly affected by state succession. Internationally,
the term is nationality and in domestic law the appropriate term used is citizenship both referring
to the same thing. It was previously discussed the concept of nationality as a link between the
national state and the national. And having nationality is extremely important in international law
to enjoy certain rights and shoulder corresponding obligations. If you have a stateless person that
person will not enjoy those rights arising from nationality. That is why international law is
striving to have a situation whereby no one will be stateless. Thus how does one envisage the
impact of state succession on nationality?

In case of dual or nationality it is not a problem. One may even have multiple nationalities in
case where ground of state succession is, for example disintegration. A certain state may
disintegrate into two or more states. It is hugely dependent upon national laws. International law,
as a matter of principle does not dictate states the grounds on which nationality will be conferred.
The states determine, i.e. it is a domestic matter. This is the principle. Note that it is not being
said this is an absolute rule. The basic rule is states determine who will be their nationals.
International law may intervene where nationality is granted or denied arbitrarily.

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Although there is no specific treaty on that matter there are attributes through interpretation of
the existing laws at least to lay down the rules where by individuals will not be stateless. In some
treaties there is a black and white rule that dictates on the issue of nationality. If you look at, for
example, the African Charter on the Right and Welfare of the Child in respect of children if a
child is born in a certain country then that country cannot deny nationality. So the point is
international law nowadays, because stateless situation is a dangerous situation, tries to reduce
those scenarios.

In case of state succession it can happen that an individual may have as a result of a circumstance
that calls for succession a dual nationality or no nationality at all. Now as it is known for
example nationality in various nations is granted based on the ground of birth and by descent or
combination of the two. Of course there are laws on other grounds like naturalization, meaning
granting nationality through adoption procedure. If for example, national of state A and national
of state B then state A may prefer to grant nationality to the adopted child. There is also
naturalization where a person not born in that country or descendants does not have that
nationality but gains it because he managed to live there for a certain period of time.

In case of state succession especially during secession, some people who are inhabitants of the
new state may lose both the nationality of the predecessor state and the new state because they
follow different formula. Those individuals living in the new state may lose the nationality of the
new state because they might have been born in the predecessor state. So depending on the kind
of rule we follow there are situations whereby dual or multiple nationality or statelessness
situation may arise.

Now the general rule in international law is that nationality will change with sovereignty. This
means that if a new state secedes and becomes sovereign its inhabitants will be nationals of the
new state. This is a basic formula but international law does not guarantee this to be observed
because although nationality can follow sovereignty a state may deny that nationality for it is not
accommodated with the domestic law. However international law again provides that the basic
principle that is no person shall be stateless due to state succession. So maybe the two states
should sit down and discuss on how to synchronize the issue of nationality. Agreement can
overcome this problem.

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Although the old state and the new state have discretion to determine the grounds of nationality,
what international law provides is that you cannot adopt a rule that would render an individual
stateless. Otherwise, it is difficult to have an encompassing rule in international law that compels
states to grant nationality in specific situation.

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Law of International Organizations

One of the entities that have been accepted as having international personality nowadays is
international organizations. Here in this chapter we add certain points to our discussion on
subjects of international laws.

International organization is an organization typically established by a treaty whose members are

states or other international organizations. We can also call it inter-governmental organization.
One example is IGAD. It is established by a treaty. And the only members of international
organizations are basically states and in some cases international organizations. An international
organization can be a party to a treaty to form a new inter-governmental organization.

Three basic things to note is first the treaties here are stratified treaties. And second is its
members are either states or international organizations. Thirdly it has a separate personality.

Now we have already dealt with how international organizations are different from NGO’s. You
might have NGO’s working at the international arena such as Amnesty International, ICRC or
Human Rights Watch. But these are established by individuals and hence would not qualify as
international organizations.

Nowadays we have multiple international organizations working in various areas and as such
their specializations are quite different. We have international organizations at a global level
such as the UN. We also have continental inter-governmental organizations such as the African
Union and the Council of the European Union. There are also some regional international
organizations such as the Arab League.

Essential features of International Organizations

Their origin is based on a multilateral treaty. There is a multilateral international agreement

which forms an international organization.

The institutions have personality of their own as distinct from the personality of their constituent
member states.

All international members are permanent organs which carry out their different functions.

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We cannot deal with how each intergovernmental organization is formed, how members are
admitted, what the powers and responsibilities of each international organizations and other
issues will be. So what we’ll be doing in this course is to select typical international
organizations with a belief that the discussion there will somehow represent, although not
identical, the issues that can be raised in relation to other international organizations. So in that
regard we will raise basic issues in relation to the United Nations. It is an international
organization having close to universal membership and the issue that we raise that relate to the
UN at least in broader terms can apply to others. At a regional level we will also get back to the
African Union for two reasons. One is it will tell us the roles of regional organizations and
secondly this is an institution that has close relevant to us.

The United Nations

What are the reasons that necessitated the establishment of the United Nations by the
international community? This is an important question not because it allows us to know the
justification but also it will give us an understanding of whether the UN is living up to its
expectations.

There is a need for peace and security in the international arena and there is a problem of
fulfilling this objective as an individual state. By creating an organization, the UN, states avoid
the problem by taking collective measure.

Another reason is to have standard rules and regulations at an international level. As we can
observe before the emergence of the UN during the Second World War there were multiple
violations to basic human rights and other elementary issues. There must be a consensus as to a
minimum standard as to rudimentary issues concerning individuals and states. To do this
establishment of an international organization is necessitated which comes up with such rules.

If one can remember, all these big international organizations particularly the League of Nations
and United Nations were established after a big international war. The League of Nations was
established immediately after the conclusion of the First World War. Then the Second World
War followed. Then states formed the United Nations. And the basic reason why the United
Nations replaced the League of Nations was that the latter was unable to prevent aggression of
war which was actually its prime purpose. So it flanked to fulfill its primary purpose. There were

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blatant violations to the League of Nations was unable to respond to. So, the main expectation of
the United Nations was that this international organization will save the world basically from
subsequent scourge of war.

Is the United Nation at the same level as the League of Nations? There are some writers that
argue in as much as the League forbade aggression so does the United Nations. And it is time for
this institution to be replaced by another institution. Based on rough assessment, did the UN fail
to keep its promises to the extent that the situations under the current scenario warrant its
replacement? From comparative perspective the UN has a capacity to respond to a crisis. Of
course it has admitted that it has problems here and there but they do not represent the general
standing of the UN. So in majority of cases it’s acceptable. It is an undeniable fact that under
certain circumstances there are violations of the UN Charter which the organization is unable to
respond to.

If we believe that the UN has some problems then there are two options. One is to reform,
internally, so that it can be more responsive. Second it to entirely abolish and substitute it by a
new entity that has learned from the mistake of the UN. Which position seems more feasible?
By the way if the UN is to be reformed it means that the Charter needs to be amended.
Amending the charter seems to be unrealistic because that by itself require the consent of the
Security Council. Apart from the decision of the General Assembly and consent of states, it
requires that all the Security Council members to agree.

The Charter of the UN tells us the purpose of the organization, its principles, how new members
are admitted, what the various organs are, what are the powers of this organs and miscellaneous
provisions. The purpose of the UN is set out in Article 1 of the UN Charter. It has a purpose of
maintaining peace and security, developing friendly relations, fostering international cooperation
and harmonizing actions and policies of states. The principle on the United Nation is guided by
is provided under Article 2 of the Charter. It includes principle of sovereign equality, fulfillment
of obligations by states in good faith, obligation to disputes peacefully and obligations of states
to assist the UN in preventive or enforcement actions.

Another issue is membership. By the way the issue of membership we talk about here in general
terms can also be applicable to others because constituent institutors of international
organizations, you have provisions of membership which put criteria expected to enter into an

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international organization. With respect to the Charter of the United Nations there are two
provisions that set guidelines when a state is admitted to the United Nations. If you look at these
two Articles the Charter tries to make distinction between two kinds of memberships; original
members and future members. The criterion for original membership is provided under Article 3
and the criterion for the admission of new members is provided under Article 4 of the UN
Charter.

So as you may imagine the original members are those members of the UN that has been
participant to the UN conference (San Francesco Conference) that gave rise to the UN. Any state
that participated in the San Francesco Conference that gave rise to the UN, sign the document
and later ratify is the original member. Further criteria are provided under Article 3 of the
Charter. It says:

“… the states which, having participated in the United Nations Conference on International
Organization at San Francisco, or having previously signed the Declaration by United Nations of
January 1,1942, sign the present Charter and ratify it in accordance with Article 110.”

There are few countries which are original members but latter through time as a result of
decolonization and so on and so forth new members were admitted provided that the conditions
under Article 4 are satisfied. It reads:

“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.”

First of all, that country has to be peace-loving. Secondly, that country has to accept the
obligations contained in the UN Charter. The UN Charter sets out rights and obligations. That
country has to be willing and able to discharge this obligation. If the judgment of the
organization the country satisfies the criteria a new member that arises for various reasons like
cessation can be admitted to the UN.

Now the question is who is going to judge whether these criteria are met? This is basically
political. It means that in certain cases you may satisfy these requirements but the pertinent
institutions, organs of the UN, may refuse to accept new membership. So because the UN in

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particular and international law in general is a highly politicized area that politicization is
reflected on the admission of membership to the UN.

The judgment of the decision to admit a new member upon evaluating these criteria is to be
determined by Security Council. The Council has to make a recommendation and the General
Assembly will approve that recommendation. That is why Article 4 (2) provides the following:

“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.”

So this mean that if the Security Council fails to make that recommendation then the state will be
barred no matter how the conditions provided are met. There are other extra-legal factors the
Security Council takes into account.

Does Article 4 (1) mean that the attributes of states discussed and provided with the Montevideo
Convention relevant to the admission of members to the UN? Those entities that will be allowed
to join as members to the United Nations are states because the provision says ‘peace-loving
state’. What entity is regarded as a state has to be evaluated based on the criteria put in
Montevideo Convention. Thus, attributes of statehood although Article 4 doesn’t refer to criteria
of statehood can be relevant in determining as to who can be a member to the UN.

A member may be expelled from the United Nations on certain grounds. The fact that you are
admitted does not guarantee a lifelong membership when there are problems. And admitted
member may be suspended on temporary basis or totally expelled. The grounds are provided in
Article 5 and 6 of the UN Charter.

Regarding suspension, on Article 5, a state against which the Security Council has taken a course
of action will be barred from membership on a temporary basis. Its membership will be restored
when that country again complies with international law. It corrects the ground on which the
Security Council has based to make that action. Like admission to membership, this is something
to be decided by the Council and the General Assembly. The Council will recommend the
suspension and the Assembly makes the final decision. Bear in mind this kind of decision require
the concurrent vote of the permanent members of the Security Council. It is not easy to reach to
that decision.

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The ground for expulsion is provided under Article 6 of the Charter. The deciding agencies are
similar. When a state persistently engages in an act that violates the UN Charter, principles
contained therein, that state will be expelled.

Any constituent document of an international organization will set out what its organs are which
are responsible to undertake its various functions. And what are their powers and functions? So
in this regard the Charter of the UN is not an exception. In regard to this Article 7 of the Charter
provides lists the permanent organs of the UN. It may establish subsidiary organ as it deems
necessary. The permanent organs are the General Assembly, Security Council, Economic and
Social Council, the Trusteeship Council, the International Court of Justice and a Secretariat.

If you read the UN Charter it gives you what the responsibilities and powers of these institutions.
It also talks about how decisions are to be made, whether it’s a requirement of a special majority
vote or otherwise. There are details as to how these organs, with other documents like the ICJ
statute that talk about its supposed to function.

The General Assembly is the principal organ of the UN composed of every state regardless of
size, population, economic or political might. Every state is equally represented within the
General Assembly. In most cases its decisions are not binding. The weird thing about
international law is that this organ composed of every state doesn’t have a power to make a
binding resolution in almost 99% of situations. It was meant to be an international legislative
body in actual fact it is not. It’s only in regards to budget and financial matters it can make a
binding matter. On other matters it simply makes recommendations. In fact from a political point
of view if you look at the recommendation of the Security Council and the General Assembly,
the Security Council has more weight because that is the most powerful institution. Otherwise as
we have discussed in the source of international law the resolutions of the General Assembly of
the UN are not simply irrelevant maxims. They have the status of soft law particularly when a
certain resolution is passed through consensus because that shows the agreement of the entire
international community on a certain matter.

When the General Assembly pass decision the type of vote it will use depends. There are what
you call it important matters. For important matters it requires 2/3 majority and for other matters
ordinary majority. The Charter itself provides as to what are important matters. It includes on
important matters, recommendations with respect to the maintenance of peace and security if that

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matter is not ceased by the Security Council. If the Council has handed that matter the Assembly
has to refrain itself because the primary responsibility on that regard is the Council.

The election of members of the ECOSO is done by the Assembly. There are also other institutes
like the election of members of the Human Rights Council, trusteeship Council members,
admission of new members to UN, suspension of rights and privilege of members, expulsion of
members, question relating to the operation of trusteeship and budgetary questions are among the
important matters requiring 2/3 majority vote of the General Assembly.

The Security Council is supposed to be an executive wing of the United Nations whereas the
General Assembly was at least regarded as a legislative body. Its primary responsibility is the
maintenance of peace and security. The UN Secretary General may handle issues to some extent
regarding maintenance of peace and security. The General Assembly may deliberate on that issue
but it is the primary duty and mandate of the Security Council on that area. There is a provision
that requires the General Assembly not to entertain a matter if it’s already handled by the
Council.

Regarding membership, it has 15 members 5 of which are permanent. The non-permanent

members are designated by the General Assembly of the UN. That is also a very important
matter that requires 2/3 majority.

Regarding the permanent members, they form an enormous power starting from 1945. So one
can raise questions of fairness and equality. But the international community at least wouldn’t
have a better chose than this in 1945. Why? The states were more powerful at that time. They
were victorious states of the Second World War. These states may not have submitted
themselves to the UN unless you give them the right to commensurate their influence. The basic
reason these countries has been given that status is because of necessity.

The circumstance has now changed. If you compare from economic and influence point of view
some of the members of the council has lost the status after the end of the Second World War.
We can take France and Britain. Nowadays they are not as influential as before. We might
consider Germany or Japan. But because of the special arrangement of the UN this cannot be
changed.

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The Security Council can make binding decisions. It means in practical terms it is the Council
that is the legislator rather than the General Assembly. Regarding decisions there are two types
of matters. Depending on the matter the Security Council can pass either with the concurring
vote of the permanent members or without it. There are what you call procedural matters and
non-procedural matters.

In all cases a resolution has to be approved by 9 members of the Council out of the 15. The
difference is, in case of procedural matters those 9 members should not necessarily include the 5
permanent members. When we come to non-procedural matters however it requires 9 votes
including the concurrent vote of permanent members. If one of the permanent members of the
Council opposes or VETO (disapproval) then the resolution cannot be affected. This is basically
why the Security Council has failed to respond to critical questions that endanger international
peace and security.

How do you identify between procedural and non-procedural matter? This is again subject to the
voting of the Security Council. The identification of the matter requires the affirmative vote of 9
members of the Council including the concurrent vote of the permanent members. That will then
pass to the concept of double veto.

If a country, permanent member, won’t like a certain matter approved by Security Council what
it does first is that it veto the fact that he mater is procedural. So if this is the case then the matter
is non-procedural. This is the first veto. Once it is categorized as non-procedural and where is
voting is called for it again veto. This is double veto. As you can see the arrangement is
extremely rigid and which makes the Security Council itself important.

Where a permanent member of Security Council votes against a certain decision, it would render
the matter ineffective in the sense that it won’t be approved. What happens however that is and
in a number of cases it has been found out this has been fruitful. One of the permanent member
of the Security Council may be absent from the cession at all. In that case it is not regarded as
veto. That is taken as a concurrent vote. When it is said absent, the member may totally
disappear or appears and doesn’t vote. Abstention is neither opposition nor approval in which
case the negative effect of veto has been mitigated.

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Does that international personality, the UN, include an obligation to redress for wrong that arises
from the decision of the Security Council? Although in a reparation case handled by ICJ it has
contended that the UN has international personality and can sue or be sued, it did not resolve the
issue of how that damage has been awarded. That is why it is privately settled. This is a very
contradictory issue and there is no jurisprudence/practice dictating/showing us the extent to
which the Security Council will be responsible. And one of the problems of the UN is that there
is neither a meaningful check nor balance arrangement among these organs nor is there generally
a sufficient accountability mechanism. The only mechanism that can be applicable is to use the
contentious jurisdiction of ICJ indirectly.

When you have a situation that endangers the international peace and security the Security
Council basically acts, aside from the general provision of Article 24, under Chapter 6 & 7. What
are the grounds that call the action of the Security Council under Chapter 7 and what are the
specific scenarios that trigger the action of the Security Council under chapter 7?

Under chapter 6 the Security Council acts to address a dispute which in its judgment doesn’t
threaten international peace and security but if it allows continuing it is likely to danger the
maintenance of international peace and security. So the situation is not eminent in this case. In
this case what the Security Council does is it gives recommendation to states concerned to settle
disputes peacefully and so on. This is why in case of chapter six the decision of the Security
Council is not binding. It is simply recommendation.

However, under chapter seven you have a graver situation. Under this chapter the Security
Council acts or passes a binding decision and may require taking of economic sanctions or a
collective military action against a state that has violated international law. And in this case the
ground that triggers the decision of the Security Council should constitute a threat to peace,
breach of peace or an act of aggression. In such cases the Council may take three measures.

One is it may order provisional measures for example in terms of ordering ceasefire. Second is
taking non-foreseeable measure those measures that do not involve force. In this case apart from
taking provisional measure the Security Council may authorize under Article 47 complete and
partial interruption of economic relation between member states of the UN and the state that is
accused of violation of international peace. There may also be interruption of other relationships
like communications. Thirdly it may order for the interruption of diplomatic relations to make

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that state isolated. If that can’t succeed the Council may resort to foreseeable measures, measures
that involve taking a collective military action by members of the Security Council. That is of
course a last resort when the state is in question doesn’t solve itself by a non-foreseeable that is
sanction by the Security Council.

Remember in determining whether certain constitutes a breach of peace, threat of peace, act of
aggression or a danger to international maintenance of peace and security the Security Council
has huge discretion which can be abused and result in unwanted consequence. There is no doubt
that the Security Council may abuse its power on certain circumstances although we cannot
agree on the specificities of the matter.

Now, if the Security Council acts contrary to the law or beyond its mandate, what are the
safeguards available? This is the most difficult issue that has not been addressed in the UN
Charter. In regards to the power the possible abuse of power by the General Assembly is not a
problem because the Security Council itself is composed of states. It would be said that there
would be a check and balance among states and the problem is no serious. And the Security
Council as said because of veto, a country may reject matters unfairly. So for political reasons
there are times where the law would be twisted.

Does the ICJ have the power to review the decisions of the Security Council? The simple answer
is yes because in respect of contentious jurisdiction cases, the ICJ would entertain dispute
between and among states. The jurisdiction of the ICJ doesn’t extend to international
organizations. So member cannot bring an action against the Council before the ICJ because
Security Council cannot be a party of contentious jurisdiction. If that is the case what is the
solution?

The solution is one when the Security Council acts contrary to the law it is possible to request
advisory opinion from the ICJ. That advisory opinion is not binding but it gives you details. But
again states cannot ask directly for advisory opinion. They have to convince either the General
Assembly or the Council itself, in which case is inappropriate, or the ECOSO to request an
advisory opinion form the ICJ towards the law. Advisory opinion is sought by permanent organs
of the UN. Through advisory opinion the ICJ may clarify the circumstances under which the
Security Council has violated its mandate and so on and so forth.

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In other circumstances where the Security Council acts ultra vires or the executive decision has a
negative ramification on people, then one thing to do is maybe (not tested in reality) is to take the
case before the ICJ. In this case, the case itself will not be taken against the Security Council but
against member of the Security Council. That would be the hypothetical scenario. The problem
here is when a state acts in the Security Council it acts in that capacity; to what extent it will be
individually responsible to act of Security Council will be.

Economic and Social Council (ECOSO) – this is a principal organ of the UN working on
economic and social spheres. And this institution highly works with specialized agencies of the
UN as well as NGO’s. This organ has 54 member states elected by the Security Council and
designated by the General Assembly for a term of three years.

The Trusteeship Council – this is another permanent organ. This organ is no longer available
because of the fact that such territories are no longer there. They have been emancipated.
Particularly after 1994 after all states became emancipated the Council has stopped its action.

The Secretariat – it is responsible for the day to day activities of the UN.

If you look at other organs of the UN they are basically part timers. The Security Council
basically meets one or two times a year. All the ground work has to be taken by the Secretariat.
The Secretariat is headed by the Secretary General. The Secretariat/Secretary General is
appointed over the General Assembly upon the unanimous recommendation of the Security
Council. And he/she is an administrative head of the UN. It represents the UN on various
forums. Apart from this the Secretary General may bring a certain matter to the attention of the
Security Council if he/she thinks it affects international peace and security. The Secretary
General may also have a mediator role in terms of exercising good office between two or more
states.

Special Agencies of the United Nations – International Aviation Authority, FAO, WHO,
UNESCO, and ILO and so on are special agencies of UN. What makes them specialized
agencies of the United Nations? First they are not organs of the UN. They are not subsidiary
organs of the UN. The subsidiary organs of the UN are others like the Human Rights Council.
The specialized agencies are international organization in themselves. Like the UN they are
established by a separate treaty. They have their own objectives, principles as well as

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organization structure perfectly similar to the powers and functions of the UN. What makes them
specialized agencies is because they are affiliated to the UN by special agreement. The UN
enters into a special agreement with these specialized agencies to work together and for the UN
to coordinate their activities where they wish. Otherwise they can act independently. It is through
special agreement that the specialized agencies to the United Nations are affiliated to the UN.
They are affiliated by mutual benefit. They are neither created by the UN Charter nor influenced
by the UN. Their members may be different from the UN’s.

Regional Inter-Governmental Organization; the African Union

As it is known in 2002, the OAU underwent transformation becoming the African Union. The
AU was officially inaugurated in South Africa (RSA) in 2002. The constitutive act of the AU is
available. Today, all members of African continent are members of the African Union except
Morocco.

Why was the transformation from OAU to AU needed? The very reason that necessitated the
establishment of OAU no longer exists. The basic reason for the establishment of OAU is to
work together with the view to facilitate decolonization. It was successfully undertaken in the
1970, ’80 and ‘90s. So a need arises to come up with a new inter-governmental organization to
address new emerging problems of Africa. The problem was no longer colonization but good
governance. The problem was ensuring sustainable development in Africa. By the way if you
look at the objectives of the AU it is tailored to address these problems.

Some of the objectives on the AU Charter are accelerate the political and socio-economic
integration of the continent, promote and defend common African policies, promote democratic
principles and institutions, popular participation and good governance, promote and protect
Human Rights as enshrined in the AU Charter and other instruments, promote cooperation in all
fields of Human Activity to raise the living standard of the African people and promote
sustainable development. These are new formulations when compared to the objectives of the
OAU.

The principles on which the AU is supposed to act are laid down in Article 4 of the Charter. It
has added new principles on top of the principles laid down in the UN Charter. They are around
16. It includes respect of borders existing on the achievement of independence (utti possidetis),

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participation of the African people in the activity of the Union, establishment of a common
defense policy for the continent, the right of the union to intervene in member states pursuant to
the decision of the assembly in respect of rave circumstances (members also have the right to
request intervention), principles of respect for gender equality and condemnation and rejection of
unconstitutional change of government.

Structure – you have the counterpart of the UN General Assembly called the AU Assembly with
similar roles and responsibilities. It is the supreme organ. Below it there is the Executive Council
(EC). It is composed of foreign ministers of member states. This organ deliberates on policy
matters which at the end of the day by submitted to the AU Assembly for endorsement.
Specialized Technical Committees are available that advice the EC on much specific areas.

The Pan-African Parliament is intended to ensure full participation of African people. And it is
composed of five representatives from each state, parliamentarians. And it is set at RSA. It gives
consultation to political institutions but the arrangement was that after five years of
establishment (i.e. 2004) it would have a legislative role. Now it doesn’t seem this organ is
exercising that power.

Another organ is the African Court of Justice which is the counter part of the ICJ. The problem is
that the African Court of Justice is still not functioning. Why? The basic reason is the AU is
undertaking a discussion; it has been finalized and protocol ready, on merging the two courts
namely the previously stated one and the African Court of Human and People Right. The latter is
operational and situated in Tanzania. States shy from ratifying the protocol. Even in the latter
organ it has only 25 members.

The other organ is Peace and Security Council. This is a counter part of the UN Security Council
albeit some changes in is name. It will be responsible on conflict prevention, management and
resolution. This is an organ specifically authorized to peace missions and recommend to the
assembly that the AU intervene where grounds for intervention arises. It has 15 members. Finally
there is a counter part of the ECOSO, the Economic Social and Cultural Council. Apart from
these you have the financial institutions of the African Union.

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International law of Treaties

Before dealing with the detail about of this chapter, it is important to note that treaty in general is
the heart of this course. We have to remember that we have discussed treaty as one source of law
and every chapter we have discussed has something to do with treaties. But what makes this
topic different is, it is treaty over a treaty. We will not basically discuss about the substantive
aspect of a treaty.

Under art. 2/1/A of the Vienna Convention on the law of treaties, treaty is defined as: it is an
international agreement concluded between states in written form and governed by international
law, whether embodied in a single instrument or in 2 or more related instruments and whatever
its particular designation. For one thing, the definition adopted in the Vienna convention on the
law of treaties of 1969 is not enough, for comprehensive understanding of treaties; we need to
see the 1986 Vienna convention, too. After all, the general points we need to take into account
from this definition of a treaty is that 1. It is: first, it is an international agreement to be entered
between 2 or more states or “international organization” (added from the 1986 Vienna
convention). Second, it has to be in a written form and third and in fact the most important
element of all is it has to be governed by international law. If we have an agreement concluded
by states or international organizations but not inclined or governed by international law, it is not
a treaty. So, the mere fact that a treaty is concluded between states or international organizations
and it is in a written form does not automatically give it a status of a treaty. The most important
thing is that there has to be an intention that an agreement is to be regulated by an international
law.

This has been made an element for the fact that there is a possibility of having agreements
concluded by states but governed by domestic law of one of those countries instead of
international laws. It does not matter whether the agreement is embodied in a single or two or
more instruments. It does not also matter as regards to its designation.

A treaty can be entered for various reasons: like in a given state a parliament or law enacting
organ enacts domestic laws to achieve a certain purpose, the same is true in treaties in a sense
that the state and international organizations deliberate conclude and ratified act of treaty to
achieve a lot of purposes. It could be for establishing an international organization. Remember
we have said that international organization is an institution established by a treaty: behind every

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international organization, there is a constitution and that constitution is obviously a treaty. So,
one purpose of forming a treaty is to establish an international organization. It could also be
concluded with a view to transferring territory, cession, for commercial relation, investment,
establishment of international criminal courts like the ICJ, protection of environment, etc.

Rules or principles of treaties over treaties;

There are three rules which govern the law of treaties: these are;

Customary international law, the law of Pacta sunt servanda; this very maxim has attained the
status of customary international law. It is also very important for the reason that once a country
inters into an agreement, it will be bound by it. This principle which has already attained the
status of customary international law has also already recognized and incorporated in art. 26 of
the Vienna Convention on the law of treaty.

The 1969 Vienna convention on the law of treaties; as long as we will be able to learn current
international law in the near future, we will have opportunities to apply this one. If we look at the
ratification status of the 1969 Vienna convention, it has been ratified by 111 states. It is,
therefore, crystal clear to know that it is not a universal ratification. We need a way how this
treaty will binding on other states which are not a party to Vienna convention. How do we
regulate if those states interred into an agreement with other states which are a member to this
treaty is the logical question then. The simple answer to this question is that there is an
agreement that the Vienna convention has attained the status of international customary
international law. The majorities of the provisions, not all have attained the status of customary
international.

The 1986 Vienna convention on the law of treaties between states and international
organizations; so, when we have a possibility whereby a treaty is concluded between states and
international organizations, the applicable rule Is this one.

Procedures of treaty formation; for every treaty to come into the seen, in order to attain the status
of true source of law, their will obvious be first negotiation.

There will be negotiations by states on a draft treaty. Then question may arise as to the source of
that draft. If a treaty is a bilateral treaty of investment, the draft treaty will be prepared by the

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investment experts of the two countries and made available for negotiation stage then after. If it
is a multilateral treaty, the draft may come from different sources: it could be a draft coming
from NGO’s. We have different kinds of NGO’s in different areas. If they feel that a certain area
requires international regulation, they will prepare a draft and put on the table so that countries
negotiate upon the same. We may have also experts, committees, working groups, etc. for
drafting a multilateral treaty. Sometimes states themselves may take initiative to prepare the draft
document. Then, states negotiate upon the draft document. Negotiation may take several forms.
States may negotiate upon the controversial contents of the draft document. But it is important to
note in this regard that serious negotiations are expected between countries on every treaty. It is
self-evident that every issues of the draft document will be negotiated upon. That is why in most
treaties negotiation takes a longer period of time.

Once the negotiation stage is over, then, states will adopt the treaty. Therefore, at the end of the
negotiation, there will be adoption. The adoption stage is an indication of the fact that the issues
raised in negotiation are settled. After the stage of adoption, the treaty will be authenticated
possibly by signature. This procedure may be particularly relevant to multilateral treaties. For
bilateral treaties, however, we may have shorter procedures. So, once the treaty is negotiated and
adopted, every state that has participated in the conference in the negotiation will sign if it agrees
and if it does not, it may not.

Signature, as a matter of rule, does not show states intention to be bound by a treaty. If we look
how writers do write, they made a mistake in saying Ethiopia is a signatory to this and that treaty
and bound by the same. A state may be a signatory of a certain treaty but still not bound by that
treaty. It is, however, worth noting that it is a principle and in exceptional circumstance state
may bind by a treaty for the mere fact of signing it. The way states can avoid the binding nature
of treaties is disappearance after the stage of adoption. So, what some countries do is that they
participate in international conference, they negotiate, raise arguments that best fits their interest
and finally they withhold their interest to be bound by treaty. It is possible to take what Ethiopia
did in the case of African Human Right protocol as an instance. Ethiopia has signed the same
treaty but not ratified yet and thereby does not be bound by it.

Although by signing a given treaty the state does not express its intention to be bound by it, the
fact that it signed will impose some obligation before ratification is met. That is actually after

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signature and before ratification. A state who signed a treaty must not act in way it defeat the
object and purpose of the treaty. So, the state should not engage in an act that will defeat the very
objective of and purpose of a treaty in question. Even though it does not give to a full-fledged
obligation, it should refrain from doing acts in contrary to the objective of the treaty until the
ratification of the treaty. This is actually provided under art. 18/A of the Vienna Convention on
the Law of Treaties of 1969. It reads: a state or an international organization is obliged to refrain
from an act which defeats the object and purpose of a treaty when that state or international
organization has signed that treaty. Not that again, this is also more or less a requirement of
multilateral treaty. This obligation of refraining from an act is justified by the times lapsed till
the ratification stage is met. This is because, in multilateral treaties, sometime may spent till all
stages before the ratification stage has complied with.

The question now is who will represent a given country in the stages of negotiation, adoption,
etc. of a given treaty and what kind of evidence should he/she produce? This question, then, will
lead us to the concept of “full powers”. Full powers are about a document, not power stricto
senso. So, any representative, who seeks to represent his/her state in the negotiation or signature
of a treaty, has to produce a document called “full powers”. Full powers are an evidence of
agency. It is, however, important to note that the production of full powers is not required if
those who are going to attend the conference are head of states, head of governments and
minister of foreign affairs. These are taken for granted.

Since we have already said that signature by itself is not sufficient to express one countries
intention to be bound by a treaty, it is a must always for countries to express their consent to a
treaty. Consent can be expressed in various forms. In bilateral treaties, for example, consent can
be expressed by signature: note that it is not true in case of multilateral treaties. The document
will be prepared and the two states will sign. Consent can also be expressed by ratification,
acceptance, accession or approval of a treaty or by any means as long as it has been agreed.
There is no specific formula or requirement through which consent has to be expressed. So, what
matters are, the treaty accepted a certain form to be regarded as a form for expression of consent.
But, in multilateral treaties, the most common form of expression of consent is ratification. By
ratifying a treaty, countries express their intention to be bound by a treaty in question.

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Ratification is a declaration. It is a declaration by some authorized officials of the state that the
state considered itself bound by a treaty. So, there is a declaration by the concerned state official
appointed by domestic law.

What usually happened in international law is that once signature is put or authenticated, a copy
of a treaty will be sent to each signatory country. Then, by relying upon their domestic law, that
draft treaty will be ratified: in Ethiopia, for example, we know from the FDRE Constitution that
the house of people representative ratify treaties. So, the house of peoples’ representative made
declaration that Ethiopia has ratified this treaty and thereby, ready to be bound by the terms and
condition of the same. It is in accordance with the internal law that we are going to determine
how specifically that treaty has to be ratified, who ratifies it and what is the instrument of
ratification once it is ratified. In Ethiopia, for example, the instrument of ratification is
proclamation.

For every treaty, the stage of ratification is the end of treaty formation. It is, therefore, possible
to say that ratification signals the end of the treaty in most circumstances. However, for
multilateral treaties, it requires a further process. The problem in multilateral treaties is that it is
difficult to expect every country to ratify as time of negotiation. What happens for multilateral
treaties is that once it has been adopted and authenticated by signature, then, the treaty will be
open for ratification. There is what we call it “a minimum ratification requirement”.

In the majority of the cases, as long as the treaty is ratified, the treaty will inter into force. But, in
multilateral treaties, what is usually done is that once the treaty is signed, then, every country
will be given an opportunity to ratify before domestic law. It is highly being foolish to expect
every country will ratify a treaty within a given period of time. So that is why the concept of
“minimum ratification requirement” has been adopted in international multilateral treaties. We
can, for instance assume that at negotiation and adoption stage, the treaty has been signed by 150
states. It is, however, highly unrealistic to wait until these 150 states to ratify the treaty for
entering into force. This is because, as we have already stated before, a country may sign a treaty
but may not ratify it for various reasons. So, in order to overcome this problem, the concept of
minimum ratification requirement is adopted. If we look at different multilateral treaties, they
have a provision stating that this treaty will come into force if it attains certain number of

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ratification which could be 5, 10 or 15. That number is obviously a minimum ratification
requirement.

For other states which were not able to participate in the negotiation stage, they are still allowed
to join a treaty. Technically, those states that join or ratify a treaty but unable to participated in
negotiation are said to have accede a treaty. Accession practically means ratification. So,
technically speaking, accession is ratification: the difference, however, is accession is a modality
of declaration by the state to be bound by a treaty where the state does not have a chance to
participate in negotiation for one or another reasons.

Interpretation of treaties;

Since treaties contain rules, we may have vagueness and ambiguity. In this case, we need to
interpret a treaty. Vagueness and ambiguity are more prevalent in treaties than in domestic laws.
We may find more frequent deliberate or intentional vagueness. That specific circumstance of a
treaty necessitates interpretation of a treaty. Why the treaties are intentionally formulated to be
vague is the question. This is necessitated because of different contradicting interests of different
states. If we make certain things clearer, it can be found in contradictory with the national
interest of the state and that countries will reject and refuse to sign and ratify the same. So, one
way of attracting states into treaties is by making it vague or ambiguous.

But when we interpret those vague provisions of a treaty, we should use authoritative
interpretation. Generally, for every provision of international treaty, we have interpretation.
Indeed, it will be best if we can base ourselves upon authoritative interpretation. If we, for
instance, have a certain treaty, it is better if we rely upon the ICJ statue or decision for its
interpretation for the reason that the ICJ is given the judicial power to interpret.

Short of that, we have a lot of organs or institutions doing the same. In human right, for example,
we have a lot of institutions authorized to interpret a treaty. If we are going to analyze the
African Charter’s provision, rather than relying upon articles, we just simply go and see how that
provision is interpreted by the African Commission which is the best authority. If the African
Commission does not have jurisprudence on that, we will consult how the best academicians
interpret that. If it does not also exist, how “best students” interpret!

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So, authoritative interpretation is the heart of interpreting provisions in treaties. Every assertion
we make, every argument we promote and even every data we raise has to be supported by
sources or rities.

Invalidation of treaties; this topic does not deserve a detail discussion for it is difficult to prove
the existence of grounds of invalidating a treaty and they are very arguable. In theory, however,
there are certain grounds of invalidating a treaty that are provided under Vienna convention on
law of treaties.

A treaty may be invalid because it is ultra vires. It is ultra vires, if it is concluded by a person that
does not have an authority to inter into a treaty. Error and fraud could also be invoked as grounds
of treaty invalidation.

This marked the end of the lecture note, then, my best wish is from the bottom of my heart!
Husen.

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