INTERNATIONAL LAW

The nature and philosophy of International Law

Law has different meanings.

I. One definition: “The result at any given time of an evolutionary law making process
whereby the international community develops a system of rules to guide relations between
sovereign nations.” The international law at any given time is the product of this law
making process.

a) International law differs from national law in two respects.

i) Historically, at least, there has been no legislature or law making authority.
ii) No police force or any institution to enforce obedience to the law or impose
sanctions for breach of it. This has led some to contending that
“International law is not law”. However please note, that the governments
of every state in the world, act on the assumption that relations between
sovereigns are governed by law.

b) Defining international law as a “law making process” denotes that it is subject to

constant change. As we have said, international law of any given time is the result
at that moment of the changing law making process. Consequently, international
law will be a constantly changing process that will keep in step with advancing
needs of the community of sovereign nations

c) There is also a static aspect of law. The Naturalist school of law (Aristotle
Jefferson, Socrates, and Plato) held there were certain immutable laws of Nature.
Man’s job was to search for, and discover them. Cicero, Rome’s greatest lawyer,
put it this way;
‘True law is right reason consonant with nature,
world-wide in scope, everlasting and unchanging.
The law does not differ for Rome or Athens,
for the present and the future, but one eternal
and unchanging law will be valid for all nations
and for all times.”

d) In opposition the “Positivist” school which holds law is independent of outside

influence such as abstract notions of justice or the inherit needs of man. Instead it
insists;
“Only that law which has been made so by
the express act of the community,”
In other words, the international community adopts, enacts, or posits law, and that
is that only source of international law that there is.

II. Purposes of International Law

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 Generally speaking, law is an instrument without which people would be unable to
live together. The purpose of law is to introduce order into the relations of society’s
members, or relations of sovereign nations to each other, through the establishment
of known or predictable barriers to conduct. The more sophisticated the society,
the greater the need for law. For example, there is a principle, generally accepted
by nations that prisoners of war should not be tortured. During Vietnam war, this
was often violated. One of the penalties that attached was that the U.S has delayed
recognition which hurts tourist trade, etc. Hence torture involves an international
law barrier.

III. Basis of International Law

A. Positivist school – the consent of states is sole basis

B. Naturalist school – the law lies in “fundamental rights of states” (Natural rights)
C. A third, perhaps more correct view, pointed out by Prof. Bierly. :Law of Nations
(6th ed) p. 52, is that
“A customary rule is observed, not
because it has been consented to,
but because it is believed to be binding”

Individual sovereign nations are not asked whether they accept rules of law, and
are not permitted to withdraw their consent. They either obey the law or find
themselves punished by or excluded from the society or community whose rules
they refuse to accept. In the 18th and 19th century, admittance to the family of
“civilized” nations was considered as a privilege. Recognition carried with it
admittance to a community of states governed by rules that were predictable and
orderly.

IV) Who makes it, why is it obeyed, lawful and unlawful use of force

A. In individual nascent societies, law arises from collective social pressure to

restrain conduct. From this, a short step to punishment for transgressors.
To insist that before we can have law there must be some body or legislature
which “makes” law is to be historically inaccurate. True, in democracies, as
members began to number in millions, legislatures evolved because of the
need to make rules through representative because assembly of all members
was impossible. But where the number of members is quite small (number
of sovereign states in world is only about 160) it is possible to get by without
a legislature.

B. How are laws made in the international community?

Largely in the same way as nascent societies or primitive tribes – by

interaction of the conduct of each upon the others.

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 i) some times because of past practice, the limits on some kinds of
conduct can be anticipated.
ii) Where no past practice a country simply acts and waits to observe
reactions of other countries.
iii) Since general assembly of UN acts as a forum for international
debate, a state can act and obtain a much guided consensus reaction.
iv) One disadvantage of not having a legislature is that it is more
difficult to discover the content of the law. Where does one look?

C. Why is law obeyed?

1) People obey law because the consider it to be in their own interest

to do so. State like individuals, have personal and public motivation.
At personal level we compete with others, act selfishly yet we have
a public motivation to recognize the rules which help operate society
benefit us personally so it is with nations. People obey laws because
they agree with them.

The absence of a police force in the service of the community is not

therefore a relevant factor in understanding the nature of law,
whether in national or international context.

D. Lawful and unlawful use of force

1. Man’s greatest need for restraint is in use of force yet from a national
standpoint his survival depends upon sufficient armed force to overcome
internal rebels or external aggression. Though the unlawful use of force by
members of society, e.g. bank robbery can be contained and punished by
the use of greater force upon which the survival of society depends.

What distinguishes societies of men from community of states is that in

international law there is no force at the disposal of the community of
nations. [a limited exception in recent years, are the so called peace –
keeping forces of the United Nations]

Article 2(4) of the UN charter provides for two rules relating to the use force
by states:
a) “all members shall refrain in their international relation from the
threat or use of force against the territorial integrity or political
independence of any state”
Article 51 provides
“..nothing in the present charter shall impair the inherent right of
individual or collective self-defence against an armed attack”

The two clauses can be summarized; Force can be used lawfully in self-defense, and is
unlawful in all other circumstances (unless by U.N. itself, or on its behalf)

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Relation between international law and other legal systems

I Within a given system; two rules conflict. Within a given legal system as well as
two different legal systems, where two rules contradict each other, two rules have
developed, 1st from Roman law, the Islamic and then western law.
rules

A lex posterior derogat priori - the later rule supersedes the earlier one.

B. lex specialis derogat generali a special rule (or norm) supersedes a general
rule e.g. two states renounce any privileges for their consular offices while
they are also parties to the Vienna Convention on Consular Relations which
establishes such privileges, they cannot accuse each other of violating the
Vienna Convention because the special provision of their bilateral
agreement supersedes the more general provisions of the Vienna
convention.

C. A third rule, over-riding the first two is that regardless of whether which of
two rules is earlier or later, specific or general, a superior rule (or norm)
always supersedes an inferior one. For example, if the anti-monopoly
provisions of the Treaty of Rome (between sovereign states) conflicts with
a bilateral treaty between Germany and France authorizing establishing of
a joint venture or partnership which will monopolize German and French
business in a particular area, the anti-monopoly provision of the Treaty of
Rome would supersede the belated treaty provision between German and
France.

II. Municipal (Internal) law. The three legal systems which conflict so as to cause
concern to international lawyers are: (1) international law and (2) municipal
internal) law (3) more recently, supra national law

A. Defined: Municipal or internal law, is the system of law that governs

persons, situations, and institutions within a state. It embraces sub-systems
such as civil law, commercial law, criminal law, constitutional law and
administrative law. Municipal law draws its authority from the state, which
also enforces the law.

B. Most states have a constitution, from which the legislature, executive, and
judiciary derive their authority to enact sub-ordinate laws. Most
constitutions confer law making power on a central authority, e.g. Costa
Rica; other constitutions provide for a central legislative body as well as
decentralized subordinate law – making bodies. Mexico and the United
States are examples of a dual government (state and federal). Usually
sovereign power as a state to exclusively handle foreign relations is given
to the Central Federal government. Article 2 sec 2 of US constitution gives

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 president power to make treaties provided two thirds of senate concurs.
Article 1, sec 10 no state shall enter into any treaty, alliance or
confederation. Generally each state also has its constitution. Such internal
state structures, as noted in United States Constitution supra has no effect
on the sovereign central relations involving international relations.
However some federated governments may delegate limited power to states
to conduct a certain amount of international relations on their own, e.g.
California trade delegation to Japan.

C. Conflicts between Federal. Government and subordinate state over

questions of international law

Federal municipal law (internal) law system: A question of whether a

subordinate state law can conflict with federal treaty law is decided by the
highest court in the federal system. In a Missouri - versus – Holland 252
US 416 (1920). the United States Supreme court held that a law authorizing
the hunting of Canada geese was unconstitutional and therefore invalid and
not enforceable where it clashes with the text of a treaty between the US
and Canada which had been negotiated by the president and approved by
two thirds of congress.

D. Jurisdiction- International municipal law. If a problem is primarily national

in nature e.g. Missouri - versus – Holland, which primarily involved a state
challenging the federal treaty making power, then a national court, will
apply municipal (internal) law. If it is a purely international dispute e.g.
between sovereign nations international law should be applied by an
international court. There is no inter-mediate ground. In an international
court, the status of municipal (internal) law is considered as an issue of fact,
not of law, hence an error of the international court, in correctly ascertaining
the municipal rule has been held sufficient to justify setting aside an
international arbitration award.

Suppose, for example, a US manufactures electric shavers for 90 cents.

Sylvania, a sovereign state manufactures them for 1 dollar. To equalize, US
and Sylvania enter into a treaty whereby the US will impose an export tax
on US manufacturers of 10 cents per shaver, so that the US and Sylvania
cost prices are equal in world competition. However, the US constitution
(municipal or internal law) prohibits an export tax (art 1, sec 9). The US
fails to levy the export tax and Sylvania claims a loss of sales and damage
because of the US failure to levy the 10 cents exports tax. The US argues
that to levy the tax violates internal (municipal) law (act 1, sec 9) The
international court holds that it does not and awards damages to Sylvania
the US. A week later, the US Supreme court holds that any export tax
violates Art 1, Sec. 9 (internal law). The mistake of fact by the international
court, namely in ascertaining the status of US internal law would be a proper
basis for reversing the international court ruling.

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 3. International law in Municipal (internal) courts, Theoretically internal
(municipal) courts could ignore international law in any case that is before
them. Yet some states provide in their constitutions that the international
law shall be in conformity with international law. Other states, such as
England, by Act of Parliament, called an enabling Act incorporate the
substance of international treaties into municipal (internal) law. In the US,
the treaty is the “supreme law, law of land” but becomes effective after two
thirds of Senate ratify it following the negotiation of the treaty by the
President. Although sometimes congress implements a treaty with
legislation, e.g. Migratory Bird Act of 1919 (implementing Canada – US
treaty). Other states such as France provide that after some administrative
act, such as publishing a treaty in a newspaper, it becomes official municipal
law and must be enforced as such by the internal court system.

Whatever system is used to reflect international law into local law, it is

desirable because if municipal (internal law) is inconsistent with
international law, an adverse decision in a municipal (internal) court may
result in a trail de novo in the international court. Thus in Mortensen -
versus – Peters (High court of Judiciary Scotland) an Act of parliament
made it an offence for any person to trawl fish in the Moray Firth – even
outside the 3 – mile. The Scottish national court held the Act applied to
Mortensen Danish. Mortensen argued that a national Act (municipal law)
could not apply to an alien outside the 3 – mile international law limit. After
being overruled by a Scottish court, the Danish Foreign office lodged a
diplomatic protest with the U.K., which apologized and paid reparations. It
is to avoid such conflicts between municipal land and international law that
states try to have municipal law – either by “transformation” or
incorporation” reflect the rules of international law.

3. Customary international law. Most customary international law is reflected

in municipal (internal) law, as we have seen, and hence internal court
decisions usually reflect this law. For example, the doctrine of sovereign
immunity is reflected in Texas Trading and Milling Corporation V Fed
Republic of Nigeria, pp 1067 – 1068. where there is no municipal law, case
law/decisions to resolve or determine an international law question the
municipal courts will then look to international case law, follow it, declaring
that (following a tradition of Anglo-American origin) that “international
law is part of our law”

III Supranational law So far, only example is the EU. EU law is enacted by an
institution that is not a State; their laws apply and must be followed by any
municipal (internal) court of any particular member state. In the EU, law is enacted
by either the council of Ministers. After consultation with parliament, on
recommendation from Commission, it can pass rules and regulations e.g.
environmental rules where Treaty of Rome is silent. The Commission is a supra

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national body and since 1955 has passed hundreds of regulations and decisions
moving Common Market toward closer union. It is supranational because the
Commission individuals do not represent states.

Central characteristic - Super national law has a strong resemblance to a Federal

law system such as US, Mexico or India, because enactment of EU law is not only
binding on member states (e.g. France, England, Italy) but also is a part of their
municipal law. Note that EU has started out as a law making body whose
enactments bind the internal (municipal) law systems of its members, but those
enactments seem to be moving the EU members in the direction of a federal system,
e.g. “the United States of Europe” with very substantial surrender of sovereignty
by the member states in such areas as (1) issuing money (2) eliminate of tariff
barriers, and (3) possibly passing armies (analogous to the US of America).

B. Theories regarding precedence at one system over another

1) Monist – all legal systems are made up of “law” which has same
basic characteristics.
2) Dualist – hold that international law is fundamentally different from
internal municipal law as regards (a) origin of the rules (b) subject
matter they govern (c) hence no international rule of law is binding
in municipal sphere vice versa.
3) Three theories of priority or precedence.
i) Municipal (internal) law is superior to the other two: This is
the weakest theory because (1) it can not be enforced beyond
the internal level and (2) to adopt the theory of superiority of
municipal law is in effect the negation of international law.
ii) International law is superior (1) it favours the harmonization
of municipal law by the state to conform to international law
(2) principles of international law are more important
because if not resolved they can lead to disastrous wars.
iii) International law and municipal law are equal in rank. This
theory is often adopted by national courts which often seek
to sustain a rational rule of law even though it conflict with
an international rule.

C, Transformation of international law into municipal law by re-enactment,

can be applied in reverse to transform municipal law into international
law. Thus international organizations such as ILO have re-enacted
municipal law dealing with civil servants to covet their own civil servants.
When a national law is re-enacted at the international level it becomes a
part of the international level.

D. Special situation of EU. Article 234 preserves prior treaties of members

but requires renegotiation with 3rd parties states.

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 (1) The court of justice plays a key role. Its rulings become law for all the
member states.
(2) Doctrine of direct effect, Decisions of the Court of Justice apply
directly to citizens of member nations who may also invoke EEC
principles directly in national courts.
(3) It is still unresolved. France and Germany’s contention that EU law
cannot supersede clear constitutional provisions that conflict.
(4) EU law supersedes general international law for member states. Hence
they must take disputes

BRIEF HISTORY OF INTERNATIONAL LAW

One reason most writers abstain from and attempt to define international law is that it is at
best, an imprecise term which is best understood by examining its historical evaluation and
development.

I. Early beginning- In pre-history time mankind lived in families, such as those

uncovered by Dr. Lewis Leakey in Tanzania’s Olduvai Gorge. Homo habilis
families grouped into clans and tribes which formed larger groups, and finally
nations. For example, the 12 tribes of Israel which are described in Genesis crossed
the Red sea from Egypt 1500 BC, formed two kingdoms about 750BC (Judea and

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 Israel) which were then united under David about 700 B.C. By this time there were
other kingdoms and nations. King David made an uneasy truce with the Philistines
(Book of Kings), and Israel carried on negotiations for alliance with or warred
against other nations such as the Assyrians, Egyptians, Romans. International law
developed in two contexts (1) independent communication co-existed in isolation
from each other, e.g. Greek city – states, Biblical groups, e.g. Hittites, Amalekites,
Amorites, Hebrews and similar groups in Asia (now Turkey), e.g. Tarsis, Lystra,
Troas, Derbe, Cappadocia, Ephesus and (2) Amalgamation of groups with common
beliefs and traditions, into centralized empires, e.g. China, Egypt, Examples of both
kinds of nations or sovereign and powers are found in all parts of the world, in
Africa, South America, Asia, India and Europe. Both systems presented the need
for international law. Early precedents for international law, arose from the Greek
city states which conducted war, concluded peace negotiated and signed treaties,
exchanged diplomatic envoys, developed “rules of war”. In contradiction, rather
than negotiate principles of law with the outside enemies, the Romans created their
own body of law governing their external relations with other nations, the jus
gentium – law of foreigners, including treaties with foreign powers.

II. Middle Ages

A. Characteristics: Fall of Roman Empire to barbarian hordes from East Europe

and Asia – Goths and Visigoths. Rise of Islam (600 AD to 1490 defeat by El
Cid, Spanish leader after Ferdinand and Isabella combined Castile and Aragon)
Transition from medieval to modern times was characterized by.
1) Rise of cities
2) Rise of nations – England Feudal hierarchy
3) Increase in international trade and navigation,
4) Marco Polo – Vasco Da Gama – 1500, Columbus 1942
5) Crusades 900 – 1200 A.D
6) Conquest of England by the Norman 1066 – Rise of Eng
7) Holy Roman Empire – spread of Christianity
B. Holy Roman Empire. Kings emerged, Duke William the conqueror,
Charlemagne (France), Ferdinand, Isabel in Spain, the influence of spreading
Christianity among the people required that these kings recognize the church in
Rome. The Pope was both a spiritual leader and a temporal leader. Pope had
power to command allegiance under threat of excommunication (banishment
from the church), could also give special dispensations (e.g. Henry VIII in 1600
wanted to divorce). Pope was a temporal and spiritual leader Lateran treaty of
1929

1. International relations thus developed with all the rising nation states. Often, the
Pope severed as a negotiator and intermediary between warring nations. For
example the longitude separating Brazil to Portugal and the rest of S. America west
of that longitude, was negotiated into a treaty by the Pope thus averting war between
Spain and Portugal in the 1500s. Treaties negotiated by the Papacy were called
Concordats. As secular power of the national states grew, there was growing

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 hostility to Roman Church and its political decline commenced. E.g. Henry VIII
desire for divorce and his desire to expropriate church lands; negated the effect of
canon law of testamentary dispositions. Henry and rising secular mercantile class
led parliament passed Statute of Mortman (1600). Will on deathbed no good, must
be 6 months old (Newstead Abbey) Olive Cromwell, Puritan Revolution in 1600.

2. As secular power of Western Europe and England’s nations grew, and Papal
influence and church land diminished, the sovereign nation – states emerged as we
know their today. Accompanied by periods of corruption and deterioration into
materialism (Vatican, St. Francis 1215) same year as Magna Charta in England,
when idea of limited government developed.

3. Relations between Holy Roman Empire and Islam. Was basically one of
war. Unlike the duality between growing secular authority of kings and spiritual
authority of the Pope, Islam was based upon theoretical unity between religion and
law. Parallel to the decline of the papacy power, the Caliph’s power as ruler of
Islam believer gradually diminished in favour of rival caliphates claiming total
independence. Relations between Holy Roman Empire and Islam were those of
war. Jihad for Muslims, Crusades for Christians and both sides considered opposing
other as religious duty. Periodically entered into truces for travel and trade
negotiated through envoys who were mutually recognized. Over centuries the
eternal Christian – Islam holy war concept gave way to peaceful co-existence. Iran
has reversed this with the US as the “GREAT SATAN”.

III. Emergence of classical international law

A. Commencing with Protestants Reformation in 16th Century (Luther Tudor

kings) the nations turned to secular principles to govern their international
relations relying first on the Roman just gentium (law of foreigners) which
term came to designate international law. Today’s French counterpart is
“droit des gens” (the rights of foreign people). Another theoretical basis for
international law was John Locke’s Natural law. Paved the way for treaties
between hostile religious nations since : law of Nature” is more neutral
source than “Divine law”

B. First early writers concerning international law were Grotius Vitoria,

Gentile, Zouche, Papendorf etc

C. Western International law becomes universal. The 19th century saw

“classical” international law consolidated with the congress of Vienna
ending Napoleonic wars 1814-1815. Also the first attempt to codify
principles of international law (protocol concerning heads of diplomatic
missions) was made. Also first multilateral treaty – Treaty of Paris. The
American Colonies generally adhered to principles of international law
developed in Europe, but added some special adaptations at their own.

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 1) Uti possidetis (principle of intangibility of colonial borders. (Maine,
N. Hampshire, New York near the great lakes)
2) Monroe Doctrine (Hand’s off) for 100 years, America never
appreciated relations of the British Fleet until World War when
Hitler’s threat to the BC Fleet, presaged the collapse of Monroe
Doctrine.

As regards the rest of the world, territorial colonization of most of Africa

and huge parts of Asia brought Western international law automatically
because problems of colonies were problems between colonial powers, all
of which were European. The Ottoman Empire (Turkey) was formally
accepted as a member of the European community of nations in 1956, and
Persia and Thailand more or less agreed to conform to western international
law in her dealings with European nations. China and Japan were coerced
by force to accept Western international law. Thus from 1878 until 1914
there was only one international law system – that which had emerged from
Western Europe and superseded all others.

Prior to Congress of Vienna, international law consisted of some general

rules of customary law, and bilateral treaties mainly dealing with territorial
matters, usually to conclude a war or form an alliance preparatory to war.
After the Congress of Vienna during 19th Century, there developed a trend
to adopt new rules at multilateral gatherings called congress or conferences.
The first congress was aimed at bringing order into Europe and later, to
world affairs. These were attended by dominant powers: (Britain, France,
Russia, Austro-Hungarian Empire, Germany, Italy) 1884 Berlin Conference
on the Congo, apportioned all Africa to the principal colonial powers.

In late 18th Century an international union was formed to provide reasonable

regulation of the steamboat on the Danube. Telegraphs invented in past
civil war era, and to regulate international phone charges, postal
communication.

IV First World war and its Consequences. This witnessed the breaking down of
international law efforts and mechanisms to prevent the outbreak of war, as well as
existing rules to central and humanize the conduct of war. Furthermore, western
international law was challenged by the USSR when Lenin declared that USSR was
not bound by any treaties concluded previously by tsarist Russia and that it did not
recognize the “bourgeois” principles of international law. Nevertheless, the victors
Wilson (US) Clemenceau (France) Lloyd (Britain) decided to rebuild the system
basis of western international law with new principles.
(1) National self-determination for European nations only (Croatia, Serbs,
Bosnians, etc. States all claimed for recognition. Politically Wilson, George
Clemenceau ended drawing a new map of Europe, e.g. Czechoslovakia was born.
(2) open agreements openly arrived and

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 (3) The league of Nations assisted by Permanent court of international justice, set
up in 1921. The ILO was also set up to protect workers against job hazards or job
as well as exploitation.

“Small group of Willful men,” Wilson said, “defeated the league of nations” -
Senators Lodge, Borah Johnson. Dangers of “foreign entanglements” Washington),
Dangers of surrender of sovereignty; compromising the republic and determined to
retaliate against Wilson’s school teacher” attitude, they persuaded their colleagues
in the senate to defeat a 2/3 vote (only 33 votes against 98). When US refused to
ratify peace treaty, lack of support of the great power in the war, the US sounded
the death-knell of the league of Nations and guaranteed its ineffectiveness.

Other mistakes of the Versailles Treaty” (1) Reparations saddled Germany with
millions of war debt – told her she would have to pay for all he damage (millions
of buildings blown, ships sunk etc – impossible (2) 1929 Smoot – Hawley tariff –
highest in history – meant that US would not accept Germany’s goods – How then
could she repay war debt if goods were not accepted?
Russia was finally admitted only to be expelled in 1940 when she attacked Finland.
(1) Reparation and (2) US Smoot – Hawley, the major reasons for rise of fascist
Germany, under Hitler. It withdrew from league in the 1930s, and Italy too went
fascist and both were openly hostile to honored concepts of international law and
openly flaunted its rules. The road to world war II was now prepared.

V International law since 1941

Rise at Nazi Germany witnessed an outrageous flouting of principles of

international law. Hitler falsely claimed a majority of Germans in Sudetenland land
who wanted the return to fatherland. He sent in the fifth column to stir up demand
for secession and finally marched by force and took it. Then Austria. England and
France close to war. Chamberlain of England, went to Germany, made a treaty at
peace, and returned to announce to the world of “peace in our time” Only days later,
Hitler marched on France. (Sept 1939) Maginot line paratroopers. England
declared war. Dunkirk 200,000. Churchill “Never did so many owe so much too
so few.” America could see handwriting on wall. Senate once against used the
isolationist approach - Neutrality Act of 1940.

Pandemonium and repudiation on international law by the totalarialian powers

reinforced awareness of the need for a solid international legal order. The
breakdown of the system established in 1919 was correctly seen as the result of its
imperfections rather than its inherent wrongness. Even the US in retrospect
recognized that repudiating the League of Nations was a mistake. Britain, US and
USSR during war developed plans for an international order. USSR had much
earlier abandoned opposition to western international law.

The UN charter (1945) was established on a true universal pluralistic approach.

Draft proposals were worked out by the three powers at Dumbarton Oaks (U.S) in

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 1944, then Yalta in early 1945 before end of war, and then San Francisco
conference in late 1945. UN charter adopted most major principles of Western
International law but structured into the system the idea of peaceful change and
progressive development so that the machinery is in place in the UN charter for
continual adjustment of international law to changing conditions.

Since 1945, the number of sovereign states constituting the international

community has more than doubled, principally as a result of decolonization, several
schools of thought and voting blacks have developed within the framework of the
UN charter; “families or organizations”

1) Countries with Marxist – Lenin ideology – soviet block

2) Arab states
3) Western Europe and US – seek to codify and classical western international
law rules.

“Families of organizations “have been active in drafting new rules of international

law in their field of specialization, as a result of which modern international law
have become extremely diversified, making it difficult for a single lawyer to keep
track of all its developments.

Atrocities committed by several governments prior to and during the World war II,
created awareness to protect human rights. Immediately after the war, the
“Nuremberg Principle” – concept of “higher law” with no prior foundation – was
adopted and trial conviction, and penalties, was inflicted based upon it. This
required a more formal adoption by UN so a strong language was adopted
protecting human rights of individuals and groups and so in the area of human rights
individuals for the first time have become endowed with certain rights and duties
directly under international law.

VI OUT LOOK FOR FUTURE

Since 1945, some international lawyers looking with nostalgia on the pre-world war
II classical western international law system feel that current international law is
heading towards collapse. They point to the proliferation of specific rules which
are honored in the breach, rather than the observance by a growing number of stats,
they also point to the fact that one out of four countries of the world is at war, and
the rules against use of armed force are also honored more in breach than in the
observance. A look at today’s world situation tends to support this new Nicaragua,
Salvador, Syria, Angola, Sudan, Ethiopia. Afghanistan, Sri lanka, Cambodia,
Mozambique, Lebanon, Palestine. However, this view does seem to underestimate
the sheer need for an international legal order. Historically all legal systems have
functioned and thrived because there was need for them. And so it is reasonable to
predict that the UN will continue to develop rules to refine and improve
international law and order, and quite possibly reach a point where more support

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 will be given to collective force as a means of preventing international wars or at
least promoting ceasefire conduct so that rational solutions can be reached by more
reasonable minds. As Carlyle once wrote;

Mighty without right is tyranny,

Right without right is futility,
What we must do is combine might with right
So as to make the right mighty
And the mighty right

It appears predictable that international law will not remain what is even 50 years
ago, or even what it appears today. The basic conflict between vociferous assertion
of state sovereignty will most certain be resolved during the nest 50 years by
international law ruler that will facilitate and implement the seeable solutions, will
be the formation of regional groups of states whose self-interest motivates them to
limit state sovereignty to achieve freer trade, such as e.g. EU, the Central American
Common Market.

SOURCES OF INTERNATIONAL LAW

A. Some authorities in international law distinguish between sources of

international law and evidences of international law. Thus treaties, customs and
long recognized general principles are sources, whereas judicial decisions and
doctrine are evidences of international law. These evidences are also described
in Article 38 of the Statute of the International Court of Justice as “subsidiary
means”. Therefore, another possible distinction and one that is more useful is
primary sources and subsidiary sources.
B. Written and unwritten sources. A collection of documents related to state
practice is not the source of any rules contained therein in the sense that they
originate from it; whereas a statute or treaty is not a mere documentary source
but also forms the written origin of the norm, or principle of international law.
In the case of a written codification, the principle of international law which it
reflects may have pre-existed the codification in the form of a long – recognized

14
 general principle. In such case generally the codification is regarded as the
source or origin of the law. Nevertheless, it is also proper to refer the pre-
existing long-recognised principle of international law as the source or origin
and it may be unwritten.
For example, in the area of international law, without citing case
precedent’s an appellate court in the Anglo-Saxon legal system can
simply say, “It has long been recognized that the principal is liable
for the acts of the agent within the scope of his authority. Similarly
and in other words the master is liable for acts of the servant within
the scope of his authority.

By analogy, in the area of international law, the International court

of Justice sitting in “The Hague, Netherlands, with its judges drawn
from world’s major legal systems, may state in a written opinion.
“It has long been recognized that “pacta sunt servanda” (treaties are
to be observed).
The primary source and origin of “pacta sunt servanda” is the longstanding
principle of international law. The subsidiary source may be the written opinion of
the International court of justice that quotes the rule and refers to it in deciding a
particular case. On the other hand, if principles of international law have been
codified and State X and State Y enter into a treaty adopting such codified
principles, so long as such treaty is in effect, the treaty is the immediate origin or
“source” of the principles of international law so codified. If a later treaty between
States X and Y rescinds the codification, the source of origin of such principles is
their long recognized origin in custom, which may be unwritten

Unwritten sources are custom and general principles. Customs evolve from a
practice which eventually comes to be perceived as conforming to a legal rule.
General principles are views or convictions which end up by being perceived as a
legal norm or rule.

If unwritten sources arising from customs or general principles are codified in a

treaty between States X and Y, or are reflected in a written opinion of the
International Court of Justice in litigation between X and Y, it is proper for State Z
to invoke such principle of law as a written principle arising from such treaty or
written opinion even though state Z is not a party to such treaty or such litigation.

C. SOURCES OF INTERNATIONAL LAW PER INTERNATIONAL COURT

OF JUSTICE STATUTE ARTICE 38

Note the ICJ is a 15 person court established in 1946. In the same year, the
Permanent Court of International Justice approved by the Assembly of the League
of Nations in 1920 was dissolved. Article 38 reads
1. “The court whose functions is to decide in accordance with international
law such disputes as are submitted to it, shall apply;

15
 a) international conventions, whether general or particular establishing
rules expressly recognized by the contesting states,
b) international custom, as evidence of a general practice accepted as law,
c) the general principles of law recognized by civilised nations;
d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists (authors) of the various
nations, as subsidiary means for the determination of rules of law.”

INTERNATIONAL CONVENTIONS

(a) “International conventions” is just another name for treaties. A treaty to

which many states are parties is “general”. A treaty between a few states
including the contesting states is “particular.” “Establishing rules expressly
recognized by the contesting states” is calling our attention to the fact that
treaties do not make law of general / application, they make rules between
the parties (particular applications). They are “expressly recognized” when
the state by voluntary act becomes a party to the treaty, e.g. by ratifications.
Treaty rules become “law” for the parties because international law as
treaties gives them this effect, just as under national law parties are bound
by rules of contract because contract law requires it.

1) “Law making treaties.” Taken literally there is no such thing,

but the term is used to refer to a multilateral treaty which rather
than set out mutual rights and obligations, states in a
comprehensive manner the states’ collective view of what the
law is or ought to be. Hence, rather than a “law making treaty”
a better name would be a “law-stating treaty.” Whether such a
treaty actually “makes” law, depends not on any inherent force
in the treaty, but upon the subsequent practice of the states that
are parties to it, and in particular the attitude taken to the rules it
contains by “third” states not a party to the treaty. If such third
parties to the treaty align their practices to conform to the rules
set forth in the treaty, then this is what the law becomes.

Any other statement, not contained in a treaty, such as

resolutions of the General Assembly of the United Nations,
would be authoritative in the same way if the current and future
practice of states demonstrated that they accepted it as a correct
statement of international law.

An examples of “law stating” treaty which became “law

making” was the International Convention concerning the Laws
and Customs on war on land of 1907 (Hague Convention No.
IV). The preamble reads that “until a more complete code of the
laws of war can be drawn up, the parties declare etc.”

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 See also Declaration of Paris 1856 (on neutrality in maritime
warfare), the Genocide Convection of 1948.

2) Treaties constituting international organizations. The

Internationals Court of Justice has decided that the Charter
created the United Nations with “an objective personality” that
is, one that is binding on non-members. In the Reparation for
Injuries Case (I.C.J 1949) the court advised that the UN had the
capacity to bring an international claim against Israel (then a
non-member) for failure to adequately protect a UN official who
was assassinated by terrorists. Any international organisation
created by a treaty between states probably has such an
“objective” existence.

D. CUSTOM

1. Definition: no specific definition for it but, as noted earlier, the

phrase “general practice accepted as law” contains most of the
constituent elements.

2. The practice of states – is shown by its acts and attitude in its

international relations with other states. When it becomes clear that
each state acts in the same way, or adopts the same attitude towards
the acts or omissions of other states, the practice of states is uniform.
State practice which is both uniform and constant creates a “usage”.

3. Since custom requires “general practice.” The State practice

concerned must be both extensive and representative. The question
arises, how general does the practice need to be? There is no precise
answer. So long as a group of states follow the practice and accept
it as law, there is a custom.

The practice must be representative. In the words of the ICJ in the

North Sea Continental Shelf cases, the practice must “include that
of States whose interests are specially affected.”

4. A period of time. The North Sea Continental Shelf Case (I.C.J 1969)
had this to say about the period of time necessary for the formation
of a custom:
“Although the passage of a short period of time is not
necessarily, or of itself, a bar to the formation of a new rule
of customary international law, an indispensable
requirement would be that within the period in question,
short though it might be, state practice, including that of
states whose interests are specially affected, should have

17
 been both extensive and virtually uniform in the sense of the
provision invoked.

5. “accepted as law” -- Opinio Juris” to become a rule, of customary

international law, a usage must be recognized, by the states which
conform to it, as having now become a binding legal force. Usage
becomes custom when states no longer feel able to act in a manner
different from the usage, i.e. that they must in law follow the usage.

6. Omission to Act State practice can be shown not only by acts, but
also by an omission to act. In the Lotus case (.A.C.I.J 1927) the
Permanent Court of International Justice said:
“States have often abstained from instituting criminal
proceedings, but only if such abstention were based on their
becoming conscious of a duty to abstain would it be possible
to speak of an international custom”

7. Proof of custom. In the Asylum Case (I.C.J. 1980) the court said;
“The facts… disclose so much uncertainty and
contradiction… in the exercise of diplomatic asylum. So
much inconsistency in the rapid succession of conventions
on asylum ratified by some states and rejected by others, and
the practice has been so much influenced by considerations
of political expediency… that it is not possible to discern in
all this any constant and uniform usage, accepted as law”

8. Legal affects of custom: Can a custom bind states which did not
contribute to its creations? Two theories.

a) Yes. In particular it can bind newly created states accepted

as members of the international community, in much the
same way that a new born child is subject to internal laws of
nation in which his parents are national. Most Western and
traditional states support this theory.

b) NO. To bind states that did not contribute to the creation of

the custom is contrary to the principal of legal equality of
states. Entry without reservation into official relations with
other states signifies only that the new state accepts only that
group of principles and rules of international law which are
the basis of relations between states, but not necessarily
other rules. Communist states and newly created or recently
created states support this theory.

A state may deliberately opt out of a custom in the process

of formation by consistently and un-equivocally refusing to

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 accept it. In the Anglo-Norwegian Fisheries Case [I.C.J,
1951} the International Court of Justice decided that Norway
would not, for this reason, be bound by rules based upon
custom which establish base lines from which to draw
territorial waters.

9. Special custom: A state may create a special rule for itself, if other
states permit it to do so, e.g. by a unilateral act, lay claim to the sea
bed beyond the limits of territorial waters. Other states can then
either (a) protest (b) acquiesce, but an acquiescing state must be
proved to have had full knowledge of the facts. Example.
The Truman Declaration of 1945 asserted US jurisdiction
over natural resources of the sea bed and sub-soil of the
continental shelf beyond the limits of territorial waters
because oil had been discovered there. Other states not only
acquiesced, but rapidly made similar claims themselves.
The right to explore and exploit the sea-bed up to a certain
distance from the sea coast thus evolved from a special to a
general custom, and was “codified” in 1958.

10. Comity. The word “comity” means “courtesy.” States accord each
other as acts of courtesy, and especially their official
representatives, special privileges above what may be required
under international law for ordinary nationals. Historically, most of
the rules of diplomatic law started as “rules of comity”.

E. GENERAL PRINCIPLES OF LAW

The third source of law referred to in Art 38 (c) of the Statue of the
International Court of Justice is the general principles of law
recognized by civilized nations”. A confusing question is: “Are
these principles of international law, municipal (internal) law, or of
both (or all) known legal systems.” There are three theories

1. General principles of international law. Examples of these are (a)

equality of states (b) independence of states. Those who hold that
the phrase “general principles of law recognized by civilized
nations” as used in Art. 38(c) means “general principles of
international law” point out that the 1 st Sentence of Article 38 states:
“the court whose function is to decide in accordance with
international law such disputes as are submitted to it” etc clearly
refers to international law, and it would hardly be consistent with
this preamble to apply general principles of municipal law.

2. General principles of municipal law. Those who support the theory

that Article 38’s phrase “general principles of law” can include

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 general principles of municipal (internal) law are quick to point out
that this theory does not include all general principles of municipal
law. And even those rules which are included and which in their
municipal setting have crystallized into legal institutions are not
incorporated in their entirety together with all the subsidiary rules.
For example the Anglo-Saxon concept of estoppel or a trust in a
trusteeship system – it is only the general principle that is, or should
be incorporated into international law, and not all the subordinate
internal (municipal) corollary rules regarding estoppels or a trust.

3. General principles of all legal systems. Those who contend that the
International court of justice is entitled to draw “general principles
of law” from all legal systems in exercising Article 38, jurisdiction,
quickly point out an important condition inferred from a careful
reading of the entire article, namely that any “general principles
applied must clearly relate to international relations. Thus, e.g. Real
estate law principles would not be a suitable area from which to
draw “general principles” because “land” or real estate law is almost
totally unsuitable to and inapplicable to state territory, Article 38(c)
use of phrase: “recognized by civilized nations” is a further
important modifier requiring whatever principles are followed by
the International Court of Justice must come from states with a
developed legal system.

4. Judicial recourse to general principles of law. An important

question: Is international law a theoretically complete system of law
capable of providing a legal answer to every dispute? Stated in
another way can a court return a non liquet, i.e. refuse to give
judgment on the merits because of a lack of applicable law. The
answer suggested by Art. 38 is that an international court may have
recourse to general principles (in the absence of custom or treaty
provisions discussed earlier) where and to the extent that this is
necessary for the performance of the judicial function. Clearly,
Article 38(1) (c) enlarged the courts function to enable it to settle
the dispute in the absence of other applicable law by resort to general
principles of law. In dong so, the court is not making new law, but
is stating with authority that a principle that is to be found in all
developed municipal legal systems is a general principle of law and
therefore is also present in international law. Thus in the Chorzow
Factory case (PCIJ.1928) the Permanent Court of International
Justice said:
“It is a principle of international law and even a general
conception of law, that any breach of an engagement
involved an obligation to make reparation”
The Permanent Court of International Justice, and its successor, the
International Court of Justice have made the most use of their power

20
 to enunciate general principles in the fields of evidence, procedure,
jurisdiction, res judicata and use of indirect circumstantial evidence.

4. Summary of constituent elements of general principles of law.

Before a court can adopt, recognize, and incorporate a “general
principle of law” as that term is used in Article 38(1) (c) there must
be;
a) a principle, its surrounding subsidiary rules being ignored
b) general, i.e. present in all developed municipal legal
systems.
c) relevant to international relations, and
d) necessary for resolution of the dispute before the court

5. Equity. Although some authorities consider equity as a separate

source of international law, most consider principles of equity as a
part of general principles of law that can be involved to resolve a
particular dispute. For example:
(a) Clean hand doctrine. In the Chorzow Factory case (P.C.I.J.
1927),
“One party cannot avail himself of the fact that the
other has not fulfilled some obligations….. if the
former has by some illegal act, prevented the latter
from fulfilling the obligation”
(b) Estoppel. In Temple Case (I.C.J. 1962) an action tried on
the merits, the court invoked equitable estoppel to hold that
a party’s prior conduct barred it from later asserting a
position inconsistent with that conduct.

(c) Ex aequo et bono Article 38 that in any event, if the parties

stipulate that the court can decide a case ex aequo et bono
(that is, on general principles of equity and fairness) it may
do so.

II The Evidences of international law

A. Judicial decisions. Judicial decisions state, but do not make,

the law. They should therefore be thought of as evidences rather
than sources of law. The judicial decisions we are taking about are
those of P.C.I.J., I.C.J and municipal (internal or national) courts

1. International courts decision – are entitled to most weight.

2. Doctrine of precedent and judicial consistency. In
international law there is no doctrine of precedent. Article
59 of the Statute of the International Court of Justice states;

21
 “The decision of the court has no binding force
except between the parties, and in respect of that
particular case”
Nevertheless, principles stated in one case are often re-stated in
identical terms in a later case. And, even though judicial precedent
is disclaimed, on occasion, the court goes to great length to
distinguish facts before it from earlier cases. Thus, In interpretation
of peace treaties case (I.C.J. 1950) the court said’
“In the opinion of the court, the circumstances of the
present case are profoundly different from those
in … Eastern Carelia Case (P.C.J. 1923)
Thus in the sense that any legal system endeavours to be consistent
there is implied recognition of precedent.

3. International military tribunals. Military tribunals such as those

established for German and Japanese war criminals have made a
significant contribution to the development of the law of duties of
the individual in international law, as well as on aspects of the laws
of war. The present day authority of the Nuremberg decision rests
not so much on the theory they are precedents as it rests on the legal
principles underlying the actions at the General Assembly at the
United Nations.

4. International arbitration tribunals are set up by two or more states to

judge disputes between them, generally on the basis of international
law. Arbitration tribunals differ from international courts in that
they are always ad hoc bodies and courts are permanently
established. Reports on international arbitration Awards since 1922
are more than 15 volumes. They have undeniable influence in
shaping international law, e.g. Judge Huber’s classic exposition on
of the process whereby sovereignty is acquired over territory in the
Palm Island Arbitration (1928).

5. Decision of National Courts, i.e. constant and uniform decisions of

national courts of different states on a topic of international law,
including aspects of the exercise of criminal jurisdiction over
territorial waters, diplomatic and consular privileges, state immunity
and prize law. The force of these decisions as legal authority for a
particular principle of law rests less upon their formulation by
tribunal (court) than on the acceptance of the legal principles
underlying the judgments by the General Assembly of the United
Nations. Bear in mind, national (municipal) courts apply
international law only to the extent that the internal system permits.
Each nation decides that differently. In some states it is a rule of the
constitution that international law overrides national law. In the UK
there is room for application of “international law” only where there

22
 is no pre-existing municipal law (statue or case law) constituting a
binding precedent. Since a national court is considered an organ of
its own state, its decisions are not evidence of international law, so
much as the courts and state’s view of international law.

IV DOCTRINE – means teaching of the most highly qualified

publicists (authors) of the various nations, e.g. Those we have
previously listed; Grotius, Gentile, De Vitoria, Rufendorf, De
Vattel, Zouche. It is a subsidiary evident of law resorted to only in
the absence of custom, treaty, or general principles of law. Only
writers with an international reputation will be influential, e.g. of a
contemporary authority. GIDEL, law of the sea includes statements
of UN International Law Commission.

A. Use of the Doctrine by judicial tribunals. In the Paquete Habana

(US sup court 1900) the court said;
Where there is no treaty resort … must be had to the customs
and usages of civilized nations, and as evidence of these to
the works of jurist….well acquitted with the subject of which
they treat. Such works are resorted to, not for the
speculation of their authors concerning what the law ought
to be, but for trustworthy evidence of what the law really is.
Nevertheless, the international court has so far found no occasion to rely on
it. Most judges of the ICJ are themselves highly qualified publicists.

B. Role of governmental legal advisors. In international relations, new

situations are constantly arising. Just as private clients consult their
attorneys for an opinion as the consequences of legal action, so governments
turn to counsel before acting. Example: sudden appearance of “pirate” raid
stations. In UK opinions are provided by law offices of the crown in US by
Solicitor General, or Attorney General. Such opinions often quote
recognized publicists as well as other evidences of international law and
conclude with a statement whether the proposed course of action is or is not
“in accordance with international law.”

V UNILATERAL ACTS

a. Acts and decisions of an international conference have an undeniable

influence on state practice. It would appear that acts, decisions (including
declarations) of a successful conference (i.e. one with substantial agreement
among member nations) have equal force as treaties of the law stating kind.
Just as the law stated in a treaty between a small number of sates has less
weight then one between a large number of states, similarly the force of an
act, decision, or declaration of an international conference varies with the
number of nations participating. An international conference is

23
 “successful” when, ordinarily, there is 2/3 majority agreement on a
proposal.

b. Acts and decisions of international organizations (e.g. UN) which arise from
treaties can be regarded as treaty law but where future problems are to be
resolved by delegating to a commission, its statements can be viewed as a
joint statement of law, and not treaty.

VI Codification of international law by the International Law Commission. The

ILC was established in 1949 to help General Assembly of the United
Nations “progressively develop and codify international law (ARTICLE
12(1) (a) of the CHARTER). Underscored phrase above, means.
Preparation of draft convention on subjects which have not yet been
regulated by international law or in regard to which the law has not
yet been sufficiently developed in the practice of states”
“Codification” means
The more precise formulation and systematisation of rules of
international law in fields where there already has been extensive
state practice, precedent and doctrine. (Art 15 stat. of ILC, Gen
Assembly Rosal 174(ii)

A. Composition and function. ILC has 25 members, nominated by

governments for their individual competence in international law
(and not as representatives of states) and elected by General
Assembly of UN prepares draft reports and commentary to
Assembly which (a) adopts by resolution, (b) take no action (c)
recommends to member states with view to concluding a convention
(agreement) on it, (d) convoke a conference for purpose of
concluding a convection (statute of ILC, Art. 23).

B. Status of ILC draft in International law It is either (1) evidence of

existing international law – de lege lata or (2) suggestions for
developments. “… de lege ferenda. In practice, these are
inseparably inter woven. During formulation of drafts, ILC submits
to governments, and again final draft is submitted to government
before presenting to General Assembly. Draft does not really
constitute “Doctrine”, but once adopted, it is properly classified as
either treaty law, or as an act or decision or declaration of an
international conference or international organization. Hence, once
adopted it is either treaty law or Doctrine.

VII Where to find “evidence” of International law

A. US Practice Manual White man’s multi-volume Digest of international

law
B. UN Treaty series (published by U.N)

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 C. UN Repertory of Practice of United National Organisation.
D. UN Juridical year book (important opinions of UN agencies and legal
offices
E. Annual Report of UN Secretary General

SUBJECTS OF INTERNATIONAL LAW

1. THE STATE

SOVEREIGNTY. This includes concepts of independence, recognition – de facto, dejure,

and collective, types of states, formation, continuity, and succession of states.

ORGANS OF THE STATE

Here we are concerned with organs of states in relations with other states. The relations of
states with international organizations has already been discussed.

I. IN GENERAL

A. PERMANENT ORGANS OF THE STATE. In Continental Sahara case, 1929, the

I.C.J. stated “no rule of international law requires a state to have any definite or pre-
determined structure.” Nevertheless most states adopt a structure which includes the
following permanent organs.

25
a) a head of state
b) a government
c) a consular service
d) the armed forces of the state
Without those, no state cannot take full advantage of the body of rules of international law
and its benefits. A state lacking a consular service can hardly protect the interest of its
nationals abroad. A state without armed forces such as Japan must depend for its survival
upon the protection of another state or states. Under the Swiss constitution, the President
is rotated on a 7 man council and while in the office he can not under the constitution leave
the country. If he violated this by going abroad, it could be argued he is not entitled to the
dignity of head of state. The Mexican Constitution prohibits the president during term of
office from attending any church.

1. Representation of the state can be either by an organ or an agency. An “Organ” is

a part of the state, while an “agency” is separate from it. While international organs differ
in how constituted, in contrast, all states possess the same organs for the conduct of their
external relations (an illustration of, and a consequence of the legal equality of states).

2. State agents or agencies – eg trade delegations, information centers, tourist officers,

airline offices, hostel for visiting members of its merchants, marine, offices for the payment
of state pensions. These are not organs of the state, although each represent the state as an
agent. The distinction between agencies and organs is important in the context of immunity
from courts of other states, discussed later.

B. TEMPORARY ORGANS OF STATE. Sometimes a state may use an ad hoc

diplomatic special mission – a temporary organ.

C. GRANTING OF IMMUNITY IN INTERNATIONAL LAW A consequence of

sovereignty is that no other state without its permission, can exercise any authority
whatsoever within its territory. Hence to facilitate the conduct of its external relations,
each state grants permission to other states to establish permanent diplomatic and consular
missions within its territory on the basis of reciprocity. The functions and special authority
of diplomatic and consuls has been and is clearly defined by agreement. The nature of the
rights of heads of state member government and members of armed forces often has to be
spelled out by specific agreement. When a receiving state agrees that the sending state has
authority to perform a function, there is implied immunity from law to permit another state
to establish an embassy, if it does grant that permission; it is bound by rule of international
law to grant the requisite amount of immunity from its internal laws.

II THE HEAD OF STATE traditionally conducted all interfaces including signing

treaties which were agreements between monarchs. Diplomatic envoys are accredited to
the head of the receiving state. International law also treats the head of state as competent
to speak for and bind the state, for example by signature on a treaty. Certain rules of
protocol (precedence of monarchs over presidents in processions) still distinguish between
monarchs and presidents as heads of state.

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PROTECTION OF HEAD OF STATE

General. Some states have it a criminal offense offend the dignity of a friendly foreign head
of state of particular importance in relation to the law of defamation. Where the head of
state is also the effective head of government e.g. president of US and France there are
restrictions on freedom to criticize political decisions through criticism of the person
making them seems justified. (e.g. Kaunda- Museveni)

Abroad. When, at request of (or with consent of) receiving state, a foreign head of state
visits its territory, there is an absolute duty to protect the person and dignity of the visitor.
It is usually a matter of bilateral agreement as to whether or under what conditions the
personal bodyguards or service escorts may accompany the head of state.

IMMUNITIES OF A HEAD OF STATE. He is absolutely immune from the operation of

the receiving states criminal law. Regarding Civil law (private law) state practice and the
law of national courts is uncertain. Several theories (1) head of state can enjoy no greater
immunity than a state itself (which is subject to civil suit), or (2) the head of state should
be afforded no less immunity than granted to the highest ranking diplomat, the ambassador.
The best approach is to look at status of visit: (1) If a “state” visit, a head of state should
not be inconvenienced by court proceedings of any sort (2) where visit is announced
officially, it is not a “state visit” immunity must cover all official acts, with reference to
unofficial acts he should have the same degree of immunity as an ambassador. Only one
case deals with incognito visits of which a receiving state is unaware: Mighell - versus –
Sultan of Johove (1894) The plaintiff sued the defendant for breach of promise to marry,
not knowing his true identity. Sultan claimed, and was accorded immunity as “head of
state”. In view of the recent trend to restrict immunity to public acts and not private acts
an unannounced visit may carry less immunity than that of diplomats. Immunity can be
waived, only by the head of state himself.

Persons entitled to immunity. Immunity is for office, not the person. Hence, an abdicated
king, or retired president has no immunity. However, as a matter of comity, a state may
extend such protection. Members of head of state’s family are entitled to the same
immunity that he is. Members of the “retinue” a head of state, eg bodyguards, secret
service, etc are entitled to the immunity necessary to the performance of their official
duties.

THE GOVERNMENT represents the state in all external relations. Where a head of state
(e.g. Queen Elizabeth has symbolic function, reliance is not placed on her, but upon the
“head of government”, an office not recognized in international law until recent times.

HEAD OF GOVENRNMENT AND MINISTER OF FOREIGN AFFAIRS. The head of

government is simply spokesman for the government. But minister of foreign affairs has
a special place because the orderly conduct of international affairs requires that
communication between governments should pass to and from minister for foreign affairs.
Art. 40(2) of Vienna Convention

27
 1. Capacity of minister for foreign affairs to commit the state exists, even by
his spokesman word. In the Eastern Greenland case, (P.CI.J 1933) the court
said that it is:
“beyond all dispute that a reply orally given … by the minister for
foreign affairs in response to a request by the diplomatic
representative of a foreign power, in regard to a question failing
within his province is binding upon the state to which the minister
belongs”
The same applies, a fortiori to the head of government e.g. President

2. Immunities accorded abroad to the head of government and the minister for
foreign affairs are granted because they two represent the state in its external
relations, mostly as spokesman for its government and because they are
senior in rank to an ambassador. In Chang Boan - versus – Kim Tong Shik
(Circuit Court, Hawaii, 1963) the Korean Foreign minister was served with
a writ in transit through Hawaii on an official visit. Held: (after
consultation with state Dept)
“under customary rules of international law, the head of foreign
government, its foreign minister and those designated by him as
members of his official party are immune from the jurisdiction of the
… courts”

B. OTHER MINISTERS OF THE GOVERNMENT, because of increasing complexity of

government and international relations, ministers other than minister for foreign affairs
participate in international relations and conferences (e.g. transportation, justice, education,
regional planning, finance) but such names and credentials are sent to host states by the
minister for foreign affairs.

IV THE DIPLOMATIC SERVICES

A. VIENNA CONVENTION ON DIPOLMATIC RELATIONS 1961, effective 1964
has been ratified by 134 states. It provides matters not covered by the convention continue
to be regulated by customary international law. The establishment of diplomatic relations
is a bilateral operation requiring mutual consent. Rules:

B. DIPLOMATIC CHANNELS are in capital at two states (1) In the sending state minister
of foreign affairs communicates to his ambassador who contacts the minister of foreign
affairs of receiving state for an interview (2) alternatively the sending state’s foreign
minister can contact in his own country the ambassador of the receiving country, how can
rely the message. System (1) is best if a reply is needed. System (2) if no reply is needed.

Secrecy of communications through diplomatic channel is essential, particularly that

receiving state learns only through channels. Communication by wireless on a reciprocal
basis in code is often agreed upon. By Diplomatic Bag (pouch) may be entrusted to
diplomatic courier with proper credentials, free from arrest or detention (captain of
commercial aircraft). Also use telegraph, phone or Fax. All official correspondence is

28
inviolable. Host state guarantees to “permit and protect” secrecy of foreign embassies
within its territory (Russia – bugs in US embassy).

C. FUNCTIONS OF THE MISSION. Members of mission are head of mission, members

of staff (diplomatic administrative, technical staff, local (domestic service staff). Head of
mission may be Ambassador, Envoy, Minister. Usually are nationals of sending state, but
2 or more sending states can share cost of a mission abroad, if receiving state doesn’t object.
Sending state must propose ambassador to receiving state and it can refuse to accept him
without stating reason. Likewise at anytime receiving state can notify sending state its
diplomatic agent is a personal non grata. Sending state must then recall him. Receiving
state may limit size of mission. Diplomatic agent is not subject to arrest or detention, and
is entitled to protection from attack on his person, freedom or dignity. He is immune from
criminal jurisdiction and civil except (1) real property actions, (2) probate (3) professional
actions or commercial activity not involving state. He is exempt from military service, and
most dues and taxes. Immunity can be waived. There is less immunity for administrative
service and technical staff. All persons having diplomatic privileges have a duty to obey
the laws of the state. Receiving state has duty to facilitate departure of diplomatic agents
at earliest possible moment.

D. PREMISES OF MISSION. Unless receiving state gives permission all offices and
facilities of mission should be in the same location. Agents of receiving state are forbidden
to enter the premises of the mission except with permission of sending state. All mission
property including autos, are immune from search requisitions, attachment of execution
and archives and documents are inviolable whenever they may be. Protection of premises
of the mission are the subject of a special duty of receiving state to protect against intrusion,
above and beyond its general duty to insure order. In the case concerning US Diplomatic
and Consular staff in Teheran (USA - versus – Iran), the US embassy was attacked by
Militants in 1979, overrunning premises, seizing hostages, and appropriating property and
archives. Court found attack went on 3 hours without Iranian police interference. Held:
Iran was liable for damage arising from failure to discharge its duty to protect Embassy.
Receiving states must treat sending states without discrimination.

V CONSULS AND CONSULATES, and law thereof, developed form bilateral

treaties, and was largely written. Now 98 states have ratified the Vienna Convention on
Consular Relations 1963 effective 1967. The preamble recites that customary international
law governs those matters not expressly regulated by the convention. There are 3 classes
of “consuls” (1) consular officer, (2) Consular post and (3) Head of consular post.

1. Establishment and severance of consular relations. They arise from mutual /

consent. Severance is a unilateral act very rare, severance of diplomatic relations
does not imply. Severance of consular relations, which can precede diplomatic
relations as well as outlast them.

2. The Consular service have been consolidated in many countries with diplomatic
services into a single foreign service. Whether separate or together, both consulate
and diplomatic services are under minister of foreign affairs. consular posts are of

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 4 types (1) consulate general (2) consulate (3) vice-consulate and (4) consular
agency. The consular post is of a local character, hence there may be several in a
receiving state. They are not accredited to the government of the receiving state.
Consular officers do not contact the central authorities of the receiving state. Each
consular post district is independent of every other consulate post.

3. Consular Functions generally recognized as pertaining to the consular office.

a) Functions to which receiving state cannot object;

1) protect interests, economic, commercial, social, cultural and scientific
interests of the state
2) seeking lawful information on economic conditions of receiving state and
reporting thereon to sending states,
3) issuing travel documents, passports, to nationals of sending state and visas to
persons wanting to go there;
4) helping nationals of sending state and protecting their interests.
5) Inspecting vessel and aircraft of sending state

b) Functions subject to the laws of receiving state, in which case it can object
1) acting, as notary, or registrar of birth, death, marriage
2) transmitting judicial documents (depositions, interrogations)
3) representing nationals in court proceedings;
4) safeguarding interests of minors, and other person lacking full capacity, gifts
causa mortis
5) Conduct investigations of accidents during voyages settle disputes between
masters, officer, seamen.

c) Communications with nationals, including prisoners, is another function. If

arrested national so requests receiving state must notify the consulate. This
is mandatory under the European Convention on Consular Functions 1967,
except where the national is a refugee from the sending state. Consular
officers have right to visit a national in prison, to converse with him, and
arrange for legal representation.

(d) consular post can communicate with other posts and sending state and
receiving state must “permit and protect” such communications. Receiving
state can request to be present when pouch is opened if refused pouch must
be sent back to sending state.

4. Consular premises are inviolable except (1) where must condemn for national
defence or public utility (2) five or other disaster. All other situations,
receiving step must have permission to enter.

5. Consular achieves include papers, docs, files, archives, correspondence,

books, films, tapes are always inviolable.

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 6. Consular Personnel. Head of consular post – there are 4 classes’; consuls –
general, consuls, vice consuls, consular agents. In appointing any of these,
sending state must, must furnish through diplomatic channels to the receiving
state, a “commission” and the receiving state issues approval called on
“exequatur”.

(a) Persona non grata can be declared by receiving state without giving reasons,
and sending state must then recall him. Nationality of consular officers is
usually that of sending state, but with receiving states consent, two states may
appoint consular officer. Honorary consular officers are non-nationals of the
sending state. However, for limited functions, can engage in professional
activity; they are numerous enough to be the subject of an entire chapter III
of the 1963 Vienna Convention. Receiving state, as with diplomatic
embassies, must take “all appropriate stapes” to prevent any attack on the
person, freedom, or dignity of a consular officer. Consular officers are not
immune from criminal prosecution by receiving state. In case of a grave
crime, he may be arrested are immune from civil and administrative
jurisdiction only as to their official acts, but “official acts” do not include
driving vessel, cars, aircraft, so he is liable to 3rd party victims of his torts.
Key questions” Can national (municipal law) determine what official acts
are? and if so, which states law is applied? French suits illustrate the
dilemma. In Zizianoff - versus – Kahn and Biegellow (Tribunal Conventional
de la seina, 1927), a consul asked by journalist why he denied the plaintiff a
visa; he defamatorily stated “she was a spy. Held: although denying visa was
an official act the subsequent publication to third parties was not. The better
view was expressed in Boyer - versus – Aldreto (trib civil de Marseilles 1956)
Held: evidence of consul intent to act in an official capacity will qualify the
act for immunity even though in fact it is ultra vires. Immunity commences
when consular officer enters and terminates when he leaves the state. There
is no statute of limitations cutting off the right to claim immunity.

VI ARMED FORCES are not required by any rule of international law to be

maintained by a state, or forbidding it. All states except Japan maintain an
armed force (her constitution forbids it). They exist to suppress insurgency
as well as to insure defence and maintain independence, e.g. French gendarme
who is a member of armed forces, not a mere policeman.

A. DEFINITION OF ARMED FORCES Any body of men and women under

military discipline, as distinguished from police force who only maintain
international order Geneva Convention of 1949 on treatment of prisoners of
war distinguishes between “armed forces” and members of militia, volunteer
corps and organized resistance movements operating in out of own territory.
Entitlement to treatment as prisoners of war requires four pre-requisites.

1) They are commanded by a person responsible for his subordinates

2) That they have a distinctive sign recognizable at a distance

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 3) That they carry arms openly
4) That they conduct military operations in accordance with the laws and
customs of war

B. ARMED FORCES AS AN ORGAN OF STATE so long as they are under the

control of the state, in peace as well as in war. Men under arms are not an
“armed force” in international law unless they accept allegiance to some state.
Thus an independent guerrilla force (eg Contras in Honduras) operating with
its consent from the territory of ones state against another (eg Sandinistas in
Nicaragua) will not be considered in international law as acts of the state from
which guerrillas are operating. Such states, eg Honduras does run risk of
reprisals form Nicaragua or even war.

C. Armed forces in Time of Peace normally are within state and hence outside
ambit of international law. Sometime e.g. US troops in Germany under
NATO a state will have its troops in another state still under its command or
under joint command. Entry into territory of another state requires its
permission.

D. WARSHIP

Warships are regulated from longstanding international custom contrarily to

armed forces, supra; warships don’t need permission to enter the water
territory of another. Warships are subject to host states law as to order in port,
place of casting, anchor, sanitation, quarantine etc.

E. STATUS OF WARSHIP IN TERRITORIAL WATERS OF FOREIGN STATE

is one of the immunity from the jurisdiction of the littoral state. No legal
proceedings can be taken against the ship, whether for damages, collision,
salvage, reward, or any other cause. Neither the jurisdiction for the law of a
foreign state extend to a warship on the high seas. In the Schooner Exchange
- versus – McFadden (S.ct 1812), proceedings were brought in US courts to
recover possession of a US merchant ship, captured by the French, and fitted
out as a warship. The Supreme court held: that the ship, now being a warship,
was immune from the jurisdiction of the court. Although immune from
jurisdiction courts of littoral state sometimes the law of the littoral state can
apply eg if immunity is waived, a killing on board could properly be
prosecuted as “murder” by the courts of the littoral state. In Chung Chi
Cheung (Ind. Comm. Privy council 1939) Chung killed a man aboard a ship
and fled to the littoral state, under British court jurisdiction. The state of the
warship failed to request surrender of the accused. Held: such failure
amounted to an implied waiver of the warships immunity with the result that
a murder conviction by the courts of the littoral state should be upheld.

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F. CREW OF WARSHIP ASHORE involves unclear international law. State
practice appears to support principle of immunity of crew from littoral court’s
jurisdiction who are ashore for ship’s purposes (e.g. buying food) for so long
as they remain under military discipline. When ship’s purposes not involved,
the crew is subject to littoral state’s court jurisdiction. Sometimes the littoral
state’s court will agree that warships military police can have jurisdiction. To
maintain order ashore. Where one member of crew commits a crime (eg
assault) against another member, as a matter of courtesy (comity) the littoral
state may surrender the suspect to the commander of the ship. What about a
crew member ashore for purposes of the ship, and under military discipline,
who commits a crime. If at the time, it is an “act of state” that is one for which
the state subsequently assumes full responsibility, it clearly falls outside the
littoral court’s jurisdiction. In Mcleed Incident (1840) a British expeditionary
force on a reprisal raid crossed the Great Lakes into US territory and sunk the
US Caroline, causing the death of certain persons on aboard. Mcleed, a part
of the force, subsequently become a US citizens, was arrested, and tried in
N.V state Court for murder, Held, in response to protest of the U.K., the U.S
Secretary of state acknowledged’
“the transaction was a public transaction, authorized and
undertaken by British authorities, individuals concerned in
its ought not to be holden responsible in the ordinary
tribunals for their participation in it”.
It would appear that in all other cases where an “act of state” is not involved
that the littoral courts of a state have criminal jurisdiction

VIII STATE IMMUNITY is accorded the “state” itself, in addition to the

immunity given (1) heads of state (2) diplomats (3) consuls (4) governments
(5) armed forces. Term refers to the immunity accorded by courts of one
state to another state against which proceedings are brought. These rules of
international law have developed almost exclusively from decisions of
national courts, which collectively have constituted international custom.

A. “THE STATE FOR PURPOSES OF IMMUNITY is not defined by any rule

of international law, nor does any state define itself. In our discussion of
states as subject of international law, we noted that a national with full
unlimited capacity to act in international matters have a full international
personality and complete freedom of action over its nationals (personal
sovereignty) and its territory, (territorial sovereignty) is a state. This
definition will have to do here, although, as noted, it is usually a national
court that has to decide what a state is for purposes of immunity. There
seems to be agree that the only acts entitled to immunity are those of the
“states” that is endowed with an international personality and not the acts
of political subdivisions of a state such as regions, departments, cities,
towns, or counties

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B. STATE AGENCIES can benefit from state immunity if the state itself might
have benefited there from had the proceedings been introduced directly
against it. (see Hoeber, p. 1068 Allied Bank International V Banco Credito
edc de Cartago, where the Costa Rica banks promissory. note was
“commercial” but non-payment was due to law prohibiting payment – a
direct act of state through an agent. See Texas Trading V Nigeria, 1067 “For
Nigeria “commercial act” exception. Generally, a national bank has
separate personality issuing bank notes. In France, U.K. and U.S certain
departments of the government are endowed with separate legal
personalities but act pursuant to laws or government authority that
specifically treat such entities as agents and hence they are entitled to
sovereign immunity.

C. BASIS FOR IMMUNITY arises from sovereignty concept that all states are
equal, and when courts of one state are confronted with acts of another, this
equality must be respected. Two legal theories support theory that
sovereign act of a state cannot be challenged by the courts of another state:
(1) Theory of immunity (i.e. there may be liability but the state is immune
from it) and (2) plain theory of non liability. Theory (1) is the prevailing
view, which supports the corollary rule that a state could in appropriate
circumstances waive immunity. If we adopt theory of non-liability of a state
for its acts, no waiver is necessary or possible, because there is not liability
ab initio.

D. ACTS PERFORMED WTHIN TERRITORY OF FORUM, if performed

with the consent of the forum state are immune, since whenever an organ of
one state is permitted to perform a function or act in another state, the
corollary is the grant of an equal measure of immunity because two
sovereign public authorities cannot operate under the law of one of them.
If this rule applies to an organ of state, a fortiori, it applies to the state itself,
when consent has not been given; the act in question is outside the
competence of a national court and can be judged only by court of
international jurisdiction.

E. ACT PERFORMED WITHIN TERRITORY OF STATE CLAIMING

IMMUNITY, if litigated in the national court of another state, involve
international law (conflict of laws rules), the court generally applying lex
loci, the law of the place where act occurred or the property was acquired,
but this practice is a matter of prevailing public policy of national courts
and does not arise from any rule of international law. If the act in question
is abhorrent to the forum state that states courts may refuse immunity. For
example, a decree of confiscation of property (eg Uganda and Asians) of
nationals (Kenyan Asians eg) of a certain state might very well not be
recognized before the courts of the state being discriminates against (eg
Kenya courts). The original owners (Asians) might reclaim the property on
the ground that the present owner have no right of title to it, and where the

34
 defendant is some private party to which the property has subsequently been
sold by the confiscating state, no question of state immunity can arise.
{similarly confiscation of private mansion by Ortega or Vietnamese
Generals] some other courts have refused recognition in this type of case,
not on the ground of public policy of their own states but by deciding that
the act of the forcing state was contrary to international law.

F. LEVY EXECUTION by courts of the forum state against asset or property

of a foreign state is obviously an affront of it’s dignity and will rarely be
done. Only Greece and Switzerland permit it in all cases; Italy only when
there is a fiat of the ministry of justice. Generally execution against a foreign
state is contrary to international law except in relation to real or immovable
property situated in forum state. The European Convention on state
immunity of 1974 provides each contracting party undertakes to “comply”
with judgments against it from courts of other contracting states

II. “INTERNATIONAL ORGANISATIONS (I.O)” ( Green p.44 Buergenthal

p.36)

A. GENERAL. In its broad sense it refers to both organizations created by

states and (2) those established by private bodies. By 1980 there were 320
inter governmental, and approx 3,900 non governmental organizations. We
are only concerned with the 320 organizations which involve public
international law, whereas public international law does not recognize the
independent legal existence of non-governmental organizations. However,
the Economic and Social Council of the United Nations, the Consultative
Assembly of the Council of Europe have established procedures for
conferring “consultative status” on certain non-governmental organizations
which carries with it the right to receive certain unclassified information.

1. Definition of “international organisation” – one established by a treaty to

which 3 or more states are parties” It may be composed of one or more
organs, defined as a collectivity of powers grouped under one name.
Strictly speaking, an “international organization” is created by states (not
governments acting for states) and hence is not “inter governmental.”
Governments merely act on behalf of states. By being party to a treaty
requiring governments to act, a state may accept obligations which fall on
its governments, e.g. the UN “Intergovernmental Maritime Consultative
organizations.” International organizations are governed by international
law.

2. Diversity of international organisations. Public international organisations

have a relatively recent history. The earliest ones are International

35
 Telegraphic Union (1865), Universal Postal Union (1874), League of
Nations, International Labour Organization after World War I (1920). The
dramatic growth in the number of international organizations arises from
ever-increasing recognition by governments of need for international
cooperation in solving growing political, economic, and social problems of
the world.

B. LEGAL STATUS every international organisations is created by treaty,

which is the source of the law of the organisation.

1. Birth and demise – it comes into existence when the treaty is in force,
and ceases to exist when treaty is terminated “Mere lack of interest or
non-participation” will not impliedly terminate an I.O once it has been
active because it has acquired staff, premises, equipment. Of the 320
I.Os listed in Year book of I.Os 1/5 are inactive, yet they all continue to
exist.

2. Succession. Little practice in this area. The Assembly of the League of

Nations met in 1946, terminated it, and passed its property to the UN.
Sometimes there is succession involving transformation. Thus the
Organisation for European Cooperation broadened its membership to
become Organisation for Economic, Cooperation and Development
(which included Canada, United States and Japan).

3. Merger. The 1975 convention signed in Paris created the European

Space Agency (ESA). The convention provided that on it’s effective
date, it would take rights and obligation of European Space Research
Organization (ESRA) and European Organisation for Development and
Construction of Space Vehicles and on the same date the convention
that created these last two agencies “shall terminate”. It further added a
new miles stone in international law by providing that any new nations
wanting to join the ESA by signing the convention, would have to pay
a fee equivalent to its pre-rata share of the value of the agency’s current
assets.

4. “Second generation” I.O’s. Just as companies under municipal

(national) law can establish new companies, so an I.O can set up under
modern law, a new I.O. This is done where an activity within the
general terms of one organization can be more effectively carried out by
a separate organisation specifically created for that purpose. In the case
of UNITAR (United Nations Institute of Training and Research) and
UNIDO (United Nations Institute of Development Organisation), both
established by resolution of the General Assembly, the aim was, no
doubt, to secure functional independence.

36
5. Legal personality in international law. Every I.O. has a legal personality
under international law. Nations desire to substitute for their individual
actions those of a single legal entity capable of fully performing legal
acts. Since no part of inhibited globe is outside the territory of a sate
I.O have to be physically located within state territory. But since it is
inconceivable that participating states will permit the exercise of public
functions on their behalf to be subject to the laws of another state, the
activities of I.Os are exempt from the application of local law. It follows
that the granting of corporate (or legal entity) status under the local law
of the nation where the I.O is situated is not enough to permit the I.O.
to function properly. Moreover many of the functions (political,
military, etc) of I.Os fall outside the scope of municipal law and can
only be performed on an international level. The endowment of an
international organization with a legal personality in public international
law is, a sine qua non of achieving the object for which the organization
was set up.

6. I.O’s and sovereignty – I. Os are not sovereign – it (unlike) a state can

only act within the limits established by its constituent treaty. One
major function of the treaty is to demarcate precisely the powers and
function of the organisation and those retained by the member states.

7. Extent of legal personality of an I.Os legal capacity. It is one thing for

treaty states to recognize their I.O but it is quite another matter for other
states to be obliged to recognize the I.O. In Reparations for injuries
suffered in the Service of the United Nations. (ICJ 1949) the court was
asked to give an Advisory Opinion whether Israel at the time not a
member of UN was required to recognize the legal personality of the
UN for purpose of lodging a claim against Israel for reparations made
by the UN for the killing of Count Bernadette and to other persons while
on duty for U.N in Palestine. The Court ruled “Yes”. However, this
opinion reflects the prominence of the U.N. in the international
community and it is doubtful if lesser I.Os have an objective legal
personality requiring recognition. By states not a party to the constituent
treaty.

8. Legal personality under municipal international law Art. 104 of UN

charter declares that;
The Organizations shall enjoy in the territory of its members such
legal capacity as may be necessary for the exercise of its functions
and the fulfillment of its purposes”
Most International organisations are accorded similar “functional” legal
capacity, enabling them to acquire premises, enter contracts, institute
legal proceedings and be sued etc.

37
 a) Privileges and immunities International organizations are subject to local
law unless exempted. Since there is not rule of customary international
law that an I.O is immune, such an exemption must be expressed in the
constitution treaty which rarely happens, with bilateral, but often
happens with multilateral treaties, e.g. Article 105 of Charter of United
Nations.
1. “The organization shall enjoy in the territory of each of it’s
members such privileges and immunities as are necessary for
the fulfillment of its purposes.
2. The General Assembly may make recommendations with a view
to determining the details of the applications of paragraph 1, or
may propose conventions to the members of the United Nations
for this purpose.”

On the privileges and immunities of the UN such a Convention was adopted

in 1946, and states in Art 2.
The UN, its property and assets, wherever located and by
whomsoever held, shall enjoy immunity from every form of legal
process, except in so far as in any particular cases it has
expressly waived its immunities
Commonly, I.O’s enjoy a range of fiscal and currency privileges.
Communications of all organizations are exempt from censorship, some
have right to use codes and bags. The UN and other international
organisations have rights to operate their own radio station, aircraft, and
vessels and to fly their own flags. With U.N. and other I.O’s privileges and
immunities apply within the territory of all member states and not just
within that of the host state.

b) Security of host state and independence of I.O. Sometimes conflicts and

security issues must be resolved on case by case basis. For example Europe
Launcher Development Organisation (ELDO) protocol on Privileges and
Immunities says “each member state retains the right to take all
precautionary measures necessary in the interests of its security”

c) Waiver - is the duty of IO where there are Privileges and immunities.

Wherever it can the I.O may waiver without prejudicing proper functioning
of the organisation.

9. “Organs” of an IO, are so constructed as to be able to act independently of

any other I.O. An I.O like a state can act only through its organs, but the
act of an organ is the act of the I.O since the general rule is than an organ
has no independent legal personality. The notable exception is the UN
Security Council which appears to have an independent legal personality.
Art. 241 states it acts for and on behalf of all member states. U.N. has 5
prime organs

38
 a) Statutory and non-statutory organs – organs are statutory when constituent
instrument or treaty expressly names the organs of the I.O. The Treaty of
Rome provides for a “Secretarial” in the Council of Europe. Not clear if it
is an organ, but whether it qualifies as a non statutory organ depends on (1)
whether it acts for the group and (2) appears to be a part of the structure of
the I.O.

b) Reserve power of an organ may be lodged in the organ composed of a

representative of each member state. Thus, the Treaty of Rome (Art. 235)
“Where action by Community appears necessary to achieve one of
the objects of the community ……. and where the treaty has not
provided the necessary powers of action, the Council shall adopt the
appropriate provision by a unanimous decision after consulting the
Assembly”

c) Organ may create sub-organ

d) A constitute instrument may grant authority to add new organs, or may

contain “implied power” e.g. the Administrative Tribunal of UN was so
created. Organs created by neither express or implied power under the
constituent instrument can nevertheless be created by amendment to it. But,
unless a new treaty creating a new organ refers to itself as amending an
earlier constitution instrument, no such amendment will be implied. Thus,
although the Council of Europe (under Treaty of Rome) drafted and
recommended to its 12 – member nations the European Court of Human
Rights and European Commission on Human Rights under a proposed
Convention for the Protection of Human Rights and Fundamental
Freedoms, since such treaty does not refer to itself as amending the treaty
of Rome, and notwithstanding the many links between the Commission and
Court of Human rights and the Council of Europe, they nevertheless are
separate entities.

C) POWERS OF AN INTERNATIONAL ORGANIZATION are merely the sum of

the powers of its organs, including the reserve powers of the organs, A major
purpose of the constituent treaty is to clearly specify what powers are delegated to
the I.O and what powers are retained by the member states. For example, all states
retain the right to allege that an I.O is acting ultra vires (beyond strength). This is
an allegation which can be made by one subject of international law (state) against
another subject of International law, an I.O. The ultra vires doctrine can also apply
to the claim that one organ wrongfully exceeded its power by usurping powers of
another. Thus, in Certain Expenses of the United Nations. (ICJ 1962) USSR and
France claimed as ultra vires, the General Assembly’s establishment of U.N
Emergency Force in Middle East, and refused to contribute to it. Held: (Advisory
Opinion) the General Assembly did have the power to establish the force and the
pro rata assessment of cost to France and USSR was proper.

39
 1. Interpretation of powers of an I.O, involves applying customary law to
interpretation of express and implied powers to be derived from the
constituent document. The Vienna Convention on the law of Treaties
(effective Jan. 27, 1980) applies to all later treaties including any
“constituent instrument of an I.O”. The most relevant rule of the Vienna
Convention is that
“a treaty shall be interpreted in good faith in accordance with the
ordinary meaning to be given to the terms of treaty in their context
and in the light of its objects and purpose”
But it further provides that there shall be taken into account, together with
the context.
“Any subsequent practice in the application of the treaty which
establishes the agreement of the parties regarding its
interpretation”

2. The principle of “effectiveness” with an I.O, with the passing of time,

situations arise which were not envisaged by the founders. Hence
increasingly we look to the “objects and purpose” clause of an I.O’s
constituent treaty as expanded by the legal doctrine of “implied powers”

3. “Implied powers are any powers the possession of which are necessary for
the effective use of the powers expressly granted” E.g. Art. 97 UN charter
creates a secretariat “which shall comprise a Secretary General and such
staff as the organization shall require.”
Art. 101(3) provides:
“The paramount consideration in the employment of the staff …
shall be the necessity of securing the highest standards of efficiency,
competence, and integrity.”

The General Assembly established an “Administrative Tribunal” to hear

appeals from decision of the Secretary General affecting staff members.
When he dismissed several, their appeal to the Administrative Tribunal was
upheld and damages were awarded. In Effect of Awards of the U.N. Admin
Tribunal (I.C.J. 1954) the I.C.J held in an Advisory Opinion that there was
no merit to the General Assembly argument that since it had created the
Administrative Tribunal it could not be bound by its awards. It further held
that the Administrative. Tribunal had been vested with judicial powers
which the Gen Assembly did not possess, and therefore could not be
subordinate to legislative power. It held that in creating the Administrative
Tribunal the General Assembly was doing something necessary for the
continued operation of the United Nations through its secretariat (an implied
powers theory).

D. PARTICIPATION OF STATES IN ACTIVITIES OF INTERNATIONAL

ORGANISATIONS

40
1. Participation

(a) As distinct from membership – states which participate in constituent treaty

must pay or otherwise provide the budget of the organisation. Except for
paying for it, they are not obliged to participate as members of the
organization. The organization provides service for member states.
Newcomer states often pay a pro- rata contribution. Generally financial
contribution has no effect on voting rights. Notable exception is the IMF
fund as to operational budget (not administrative budget).

2. Membership – usually states, but they can be governments or departments

of government, or even a public utility such as a railroad, e.g. European
Company for Financing of Railway Rolling Stock members of which are
not railway administrations of 16 European states. No rule prevents a non-
sovereign state from joining an I.O, e.g. Universal Postal Union and
International Telecommunication Union provide for separate representation
by non self governing territories, e.g. Puerto Rico, Samoa. Possible for
members to be individuals selected by member states, e.g. Asia I – African
legal Consultative Committee. Organization may have unlimited
membership but none have achieved it. Aside from UN organizations, the
largest state membership is the Universal Postal Union with 147.

a) Limited membership is usually found in regional organizations e.g.

Council of Europe, OAS, organization of African states, Another group
with limited membership are the Commodity Councils (coffee, tea,
sugar, tin, etc) which are confined to exporters of these commodities.
Original membership arises from ratification of a treaty by the signatory
states. [UN Charter, Art. 110(4). In contrast, subsequent members may
be required to satisfy conditions of membership.

b) Conditions of membership are required by all I.O’s – even if the only

requirement they be a state. Fulfillment of conditions, and hence
qualification to membership, is by vote of the existing membership.
Distinguish between “objective” condition e.g. a “peace – loving” state.
A state may not make its vote dependent upon any condition other than
that contained in the constituent treaty. Even where condition of
membership appears to be objective (e.g. council of Europe is open to
all European states) still the votes may be subjective, e.g. the 12 could
vote in Israel, holding in effect it is a “European state.

3. Representation of states within international organizations is usually by

officials e.g. ILO each state is represented by 4 – two from labour and 2
from employers. In the Consultative Assembly by Council of Europe,
delegation of a state's members vary from 3 = 18 based on population. On
other hand, courts, tribunals, commissions, and committees are chosen from
persons with special qualifications and usually do not represent the country

41
 that nominated them. All underscored above have functional immunities
(word spoken or written) freedom of arrest or detention (except flagrante
delicto), custom search, and immigration and visa control.

E. LEGAL EFFECTS OF ACTS OF INTERNATIONAL ORGANISATIONS

1. The acts of an international organisation refers only to those acts within

scope of authority of the constituent treaty. Even if it is ultra vires, it is still
on “act” of an I.O. Organs of I.O’s perform acts within a context, that is
often within the context of the organisation itself, e.g. Article 4(2) of the
UN Charter provides for admission to membership by a “decision” of
General Assembly upon the recommendation of the Security Council.
“Decisions” of and the “recommendations” are acts within the organisations
and have no legal effect outside it. Another context is the relation of the
I.O. known as the UN with its member states. The nature of the UN act will
determine if UN rules and law will determine its effect or whether regard
must be had to a wider legal context such as public international law, or
national law of a member state. The phrase source or the act refers to most
UN decision (other than those of secretary General) which require a
majority vote, and if a majority is not obtained there is no act. Thus phrases
like UN “decisions”, “recommendations” of the Security Council may call
upon members to do certain things. The “Trustee Council may hear
petitions” are all non acts unless there is a major vote of the organs
concerned. Thus, in the Advisory Opinion on competence of General
Assembly for the Admission of a State to the UN (ICJ 1980) Held, that
under Art. 4(2) of the Charter the General Assembly could not admit a
member state where the Security Council had made no recommendation
because the candidate failed to obtain the requisite majority. Hence there
was no act by the Security Council recommending membership. The name
of the act is of little help in determining legal effect which can be discovered
from analysis of the law governing the particular I.O. Thus the terms
“resolutions” “recommendations” “decisions” do not necessarily have same
legal effect.

For example, Art. 18 (General Assembly), 27 (Security Council) and 89

(Trusteeship Council) all refer to “recommendations” but Art. 18(2) make
it clear these are also “decisions”.
“Decisions on important questions shall be made by 2/3 majority of
the members present and voting. These questions shall include
recommendations with respect to the maintenance of international
peace and security.”
So this “decision” or “recommendations” takes 2/3 vote but a Article 4(2)
decision to recommend for admission to membership only takes a major
vote of the General Assembly. So, terms “decision” and “recommend”
depend on particular sections and apart from such provisions have no
uniform meaning.

42
2. Legal effect of an act of an International Organisation

a) In international law constitute instrument may spell out legal effect

of different types or classes of acts. e.g. Treaty of Rome provides of
5 types of acts (1) regulations (2) directive (3) decision (4)
recommendation (5) opinion
“Regulations shall have general application. They shall be
binding in every respect and directly applicable to each
member state… Directives shall be binding in respect of the
result to be achieved, upon every member states, but the form
and manner of enforcing them shall be a matter for the
national authorities. Decisions shall be binding in every
respect upon those to whom they are directed.
Recommendations and opinions shall have no binding force.

(b) Legal effect of Act generally (as distinct From Treaty of Rome)
supra can be divided generally into acts which are (1) indicative (2)
Declaratory (3) Binding With General Assembly of U.N. often there
is argument as to which is the proper category. E.g. Declaration of
Legal Principles Governing Acts States in the Exploration and use
of Outer space is clearly declaratory. Yet it is authoritative in sense
it is a collective expression of all states in world as to the present
state of international law. As such it becomes more authoritative
than any previous statement of the law, short of a treaty. It is
technically not binding on any state that voted for it. Yet it is a case
before the ICJ. The Declaration could be citied as evidence of the
formation of new rules of customary international law.

(c) Legal effect in municipal law (internal) Generally, an act of an I.O.

has binding effect in the direct application of municipal (national –
internal) law, only if the constituent treaty (to which the particular
state is a party) expressly so provides e.g. Treaty of Rome, Art, 189,
supra on regulations. Otherwise the “act” will take effect only on
the international plane, not the national internal plane. Whether a
particular nation’s internal must recognize an “act” which the
constituent treaty does not require to be enforced with internal law
depends upon the constitution law structure of the nation in question
e.g. In England an act of Parliament, or in case of matter within the
Royal prerogative, an Order of Council is necessary before a treaty
provision, or act of I.O. can infringe on English law. In U.S all self
executing treaties are binding, internally, but those requiring
implementing legislation are not binding until such legislation is
passed. In Netherlands and France they are published locally. In
Australia and Germany, the act of I.O. must be ratified by
Parliament and published in the Federal Law Gazette.

43
F. INTERNATIONAL OFFICIALS

1. The Secretariat. Some organizations, e.g. NATO or diplomatic conference

of international, maritime law that meets every 2 years can get along without
permanent officials. Others like UN. that function continuously, need a
permanent staff. The concept of an international secretariat composed of
international officials that operate independent of governments. The
officials must substitute a form of allegiance to the international
organization to the extent required by the aims and the scope of the official’s
duties within it. However, these are the outer limits of such allegiance, for
example no international organization rule requires a degree of allegiance
that prohibits the official from voting in a national election. The role of an
international secretariat staff is to represent the collective interests of the
member states (as opposed to representing the interests or only one or two
states).

For example, provision such as the following, appear in the constituent

instruments of most international organizations, particularly those that serve
political functions.

a) Officials are requested to make a solemn declaration that their duty

will be to the organisation, and that they will not seek or receive
instruction in connection with the performance of their duties form
any government.

b) Member states are required to accept an obligation not to seek to

influence officials in the discharge of their responsibilities and to
respect their exclusively international character.

2. Functions of an international secretariat. In general, to provide secretarial

and general administrative services to the other organs of the organisation
E.g. in UN art 97: “The Secretary General shall be the chief administrative
officer of the Organisation. He shall act in that capacity in all meetings of
the General Assembly” [Art 98]

44
 (a) An “original” function is one directly assigned to the secretariat by
the constituent instrument, eg.
“The Secretary General may bring to the attention of the
Security Council any matter which in his opinion may
threaten the maintenance of international peace and
security”. [Art 99]

(b) “Derivative” functions are those performed by the secretariat on the

orders, or at the request of other organs of the I.O.; Eg.
“the Secretary General shall perform such other functions
as are entrusted to him [by the other principal organs of
U.N. [Art 98]
Whatever the nature of the derivative functions performed, whether
political, military (as in the case of the U.N. Emergency Force in the
Middle East) or administrative, their derivative status means that
both the function is performed under the orders and responsibility of
another organ, and that it may be withdrawn by that organ at any
time. In contradistinction, original functions (which are for more
rare) are performed on the responsibility of the Secretary General,
and cannot be withdrawn or amended without an amendment of the
constituent instrument

3. Organization of the secretariat is generally under a C.E.O. called “Secretary

General” More rare is the case of the EEC where the Commission performs
as a collegiate body the functions of a CEO under a President subject to
instructions and decisions upon a majority vote [Art. 163, Treaty of Rome]
under this Commission is the remainder of the state of the community” [Art.
212]

4. Legal status of a member of the secretariat viz- viz the organization.

Officers are either appointed by contract or in some I.Os by appointment
under a statute of service. In most, if not all cases, the official is appointed
subject to staff rules that are laid down by the organ that is composed of
representatives e.g. General Assembly. It is now common practice to settle
disputes between members of staff arising from employment by
“Administrative tribunals,” which already have laid down a body of case
law particularly subject to successful attach, are changes in staff rules or
assignments, which substantially worsen an employee’s (or employees’)
position

5. Privileges and immunities of international officials. In exercise of his

functions, the I.O official is not subject to the sovereignty or public law of
the host state. In his daily life outside the organization, the official is subject
to the local law and jurisdiction. Hence any privileges he may have outside
his official function are by grace and favour of the host state, and not a
matter of legal right. For example, his salary is not subject to host state

45
 taxation, but revenue from sources not related to official function (e.g.
gambling proceeds) is subject to host state income taxes. He is not subject
to pay taxes on his official car, but would be on the home he owns. As
stated earlier, an official of an I.O is not subject to visa restrictions, and any
military service obligation is postponed during the course of his
employment.

OTHER SUBJECTS OF INTERNATIONAL LAW

A. INSURGENTS
While a civil war or uprising may have international repercussions, from
the standpoint of existing government, it is purely a domestic matter. If
such war spreads to, or affects a neighbouring nation, it may be justified in
reconsidering its attitude. While one approach is to consider rebels
lawbreakers, stealing property like robbers or pirates, most states habitually
refuse to take this position because rebels are distinguishable from simple
law breakers by the political motive of their acts. States (other than the state
where the revolt is going on) may decide to recognize the rebels as
“insurgents”. The term can apply either to a rebellion where the object is to
establish a “non state” (e.g. Cuban, or Bolshevik rebellion) or where the aim
is simply to overthrow and replace the government of an existing state. This
has the legal effect of absolving the recognizing state from treating the
rebels as law breakers. The legitimate government is still owed rights and
still owns the duties that the government or a state habitually exercises over
its territory and population. E.g. Treaties continue to apply to the entire
territory and the government (legitimate) is still held responsible for damage
cause by either side as a result of the uprising. Other states (e.g. Tanzania)
may aid the rebels or the legitimate government if they choose subject only
to international law on limits imposed by U.N charter.

B. BELLIGERENTS
If insurgency shows signs of enduring, and if certain portion of the territory
appear to have fallen under the control of an organized insurgent force, other
states may feel obliged to adopt a more stringent attitude. This often take
the form of recognition of a state of belligerency,” or of a declaration of
neutrality. The one implies the other.

The belligerent power is recognized as the responsible authority in respect

of the territory and population over which it exercises actual control . The
legitimate government and the belligerent power (insurgents) are treated in
most respect on a basis of complete equality. The laws of neutrality apply
thereafter as if the conflict was international, rather than a civil war. The
recognizing state may engage in political discussions with the belligerent

46
 power through the send of official state agents, although since belligerents
do not have right to legations, the agents do not have the status of diplomats

Recognition of belligerency is perhaps becoming absolute. States still have

the alternative of (1) recognizing the rebel party as the de facto government.
(2) recognizing the rebel government and withdrawing recognition from the
previous government or (3) in case of an attempt as s secession, simply
recognizing the new state. Political considerations will adopt. Each is a
political decision having legal consequences, the effects of which are
strictly limited to he relations between the recognizing state and the
recognized entity.

C. THE HOLY SEE.

The position of the Pope has always been anomalous in international law.
The international legal personality of the HOLY SEE is based on the fact
that the Pope, as spiritual head of the Catholic church, has for many
centuries maintained international, relations with states for the promotion
and protection of the interests of the Catholic church and the spiritual values
on which it is founded. Thus, states have concluded treaties with the Holy
See, called Concordats, and have sent and received accredited diplomatic
representatives. This aspect of the international personality of the Holy See
has probably continued uninterrupted for several centuries.

The Popes temporal position has, however, undergone severe changes.

Until 1870, he was a monarch of the Papal States. His temporal position
between then and the conclusion of the Lateran, Treaty was uncertain. That
treaty, to which the parties are Italy and the Holy See, created the Vatican
state an area of less than on hundred acres, with a very small resident
population, most of who are there solely by reasons of their office. The
significance of the Holy See, in the field of international law lies on the fact
that international personality is here recognized to be vested in an entity
pursuing objects essentially different from those inherent in states.

D. MANDATED AND TRUST TERRITORIES

Mandates and Trust Territories are almost a thing of the past. They did at
one time constitute a noble experiment in international relations. One Trust
territory still exists (until tomorrow, March 21, 1990) – Namibia. The legal
status of one mandated territory, recently terminated by the General
Assembly, cannot be appreciated without knowledge of the mandated
system, so technically, these institutions cannot yet be considered a mere
matter of history.

1. The mandate system Art 22 of Covenant of League of Nations, gave

Germany and Turkey lands to A, B and C mandates. A & B are all
independent. Regarding C, Art 22 states;

47
 “6 there are territories, such as S.W Africa, and certain Pacific
Islands which, owing to sparseness of their population, or their
small size, or their remoteness from the centers of civilization, or
their geographic contiguity to the territory of the mandatory, … can
be best administered under the laws of the mandatory as integral
portions of its territory, subject to the safeguard above mentioned in
the interest of the indigenous population.

As regards S.W Africa, the Union of South Africa refused to convert it

into a Trust territory in 1946. Samoa under New Zealand is now a trust
territory. Others are Nauru under UK, Pacific Islands south of the
Equator under Australia but were terminated since Papua New Guinea
is now independent.
The above mentioned safeguard is as follows
“The mandatory must be responsible for the administration of the
territory under conditions which will guarantee freedom of
conscience and religion, subject only to the maintenance of public
order and morals the prohibition of abuses such as the slave trade,
the arms traffic and the liquor traffic, and the prevention of the
establishment of fortifications or military and naval bases and of
military training of the natives other than police purposes and the
defence of the territory.”

2. The trusteeship system was created with the League of Nations in 1920
and on it’s dissolution in 1946, none of trust territories had achieved
independence. Therefore, UN Charter, Ch XII instituted international
trusteeship system to apply to ;
a) territories held under mandate as of 1976
b) territories that might be detached from enemy states as a result
of the second world war
c) territories voluntarily placed under trusteeship by states
responsible for their administration

Explain change from “C” mandates under league to Trust territory (x)
above. However, S.A refused to convert S.W Africa to Trust Territory.
In Advisory Opinion on status of South-West-Africa (I.C.J. 1950) the
court advised General Assembly that South Africa has under no obligation
to conclude a trusteeship agreement but had no authority to modify the
status of the mandated territory without the consent of the United Nations.
(a) Trusteeship Agreements. conversion to Trust Territories
from Territories comes about by Trusteeship agreement
between the states directly concerned and subject to approval
by the Security Council if strategic area and by General
Assembly in all other cases. Only “strategic” area has been
Pac Islands (Maricana, Caroline, Marshall)

48
 (b) Objectives of trusteeship system are set out in Art 16 of UN
charter, and are, generally the same as the mandates under
the League,
(c) Trusteeship Council, under Ch XII of the Charter, is charged
with administration of Trusteeship system. Costs of
members who administer Trust Territories, the permanent
members of Security Council since only was revised so U.S
and the four permanent Security Council members (U.K.,
USSR, China, France). The administering authority (Now
only U.S) must submit annual reports to the 4 permanent
members.

3. Legal status of mandates and trust territories All territories under league
mandate and converted to U.N. Thus Territories were all territories
which had been :detached” from states as result of the two world wars,
i.e. these states lost their sovereignty over the territories in question by
force of arms. The mandate (League) and successor Trusteeship (U.N)
systems hinged on the fact that the powers to whom the peoples and
territories were entrusted did not acquire sovereignty over them. Only
when League (and later the UN) considered that these peoples were ripe
for independence, could sovereignty reappear in the form of a now
independent state (which we see today – March 21, 1950 in Namibia).
Thus S. Africa has never had sovereignty over S. W. Africa. In the S.W.
Africa case (ICJ 1950) Court was confronted with problem that the
league’s Permanent Mandated Commission had dissolved and there was
no agency to oversee S. Africa as mandatory and insure compliance with
the trust. In two further opinions Court developed recommended
procedure for U.N. to handle problem of overseeing S. Africa.
a) Liberia and Ethiopia commenced two S. Africa Cases (1)
Preliminary Objections (I.C.J. 1962) and (2) (Merits 166)
alleging that as former members of League they could properly
protest because S. Africa had introduced apartheid into S.W
Africa in breach of the mandate. Art. 7 of the Mandate
governing S. A – S.W.A said if any dispute between another
member of the League and a mandatory (i.e. S. African) the
permanent court of International Justice should hear it. Held:
That S.A. and its obligations in respect to treatment to League
and not to its members, and therefore S.A owed these obligations
to U.N.
b) Advisory Opinion handed down June 1971 by ICJ Legal
Consequences for state of the continued presence of South
Africa in Namibia (S.W Africa) notwithstanding Security
Council Resolution 276 (1970) clarified situation in the respects
(1) confirmed legality of General Assembly Resolution 2145
(XX1) which terminated the old mandate for S.W Africa, and
(2) Court upheld Security Council resolution 276 (1970) which

49
 declared the continued presence of S. Africa in Namibia to be
illegal and called upon members of U.N. to act accordingly. The
reasoning in the judgment has been criticized as assuming that
which it set out to prove, namely that the General Assembly is
incompetent to decide and lacked the power to decide, to
terminate the old League mandate.

E. CONDOMINUM.
Nothing prevents two states agreeing to exercise sovereignty jointly over
territory, which creates a condominium. Each state may exercise its rights
of sovereignty over the territory, and inhabitants may be entitled to the
nationality of one or both states. Alternatively, each state by agreement
may accord nationality to a part of the population. But neither state is
obligated to confer nationality as a mere consequence of the exercise of
sovereignty over the territory. Nevertheless, even the though they do not
grant nationality, each state is internationally responsible towards other
states for the well-being and misdeeds of the resident population. France
and U.K. once exercised joint sovereignty over the New Hebrides Islands,
until independence. Andorra on FRANCE – SPAIN border is a
condominium administered by these two states.

F. SPECIAL TERRITORIAL SITUATIONS

1. Territory held on lease happens occasionally. Britain leased Hong Kong

from china until 1997 The Lessee’s rights are determined by terms of
lease, in Britain’s case, “full sovereignty.” Leases are often used to
acquire land for military or naval bases; US has leased such lands for
air bases in Spain, Turkey and naval bases in Philippines; During World
war II C.S leased bases in West India in exchange for 48 Destroyers.
Upon attaining independence the US recognized that its rights under
lease lapsed – a result in international law somewhat different from the
corresponding result under “municipal (International law).

2. Polar regions. In Arctic, Canada, USSR have claims, in Antarctica,

Argentina, Australia, Chile, France, New Zealand, Norway and UK
have laid claim to certain areas. On Dec 1, 1959, the Antarctica Treaty
set up procedure for use of the area for 30 years, without any of claimant
states renouncing their claims. All the claimants of Belgium, USSR,
U.S., Japan. S. Africa have ratified.

G. NATIVE TRIBES AND CHARTERED COMPANIES

This status still arises as international issues, e.g. recently chiefs of certain
tribes in Nigeria claimed the special status granted them in the 19th century
treaty with the East India Company. The U.K legal department concluded
that, although the East India company was acting under the authority of the

50
 Crown, the native tribes had not been recognized as having any international
personality, that the agreement, though binding was not one governed by
international law; hence, upon the attainment by Nigeria to independence
the U.K’s obligations thereunder lapsed
POSITION OF INDIVIDUALS AND CORPORATIONS IN INTERNATIONAL
LAW

I. NATIONALITY of an individual has to do with his being a member of “subject”

of a certain state. In Nottebohm case (I.C.J. 1955) the court with regard to
nationality said;
“It is a legal bond which constitutes the judicial expression of the fact that
the individual is more closely connected with the population of the state
conferring nationality than with that of any other state”
.
Each state determines under its own law who are nationals. Article 1 and 2 of the
Convention on the Conflict of Nationality laws of 1930 provides two basic rules:

Rule 1 Any question as to whether a person possess the nationality of a particular

state shall be determined in accordance with the law of that state

Rule 2 This law shall be recognized by other states in so far as it is consistent with
international conventions, international custom, and the principles of law
generally recognized with regard to nationality.

II. EFFECT OF NATIONALITY UNDER INTERNATIONAL LAW

A. Customary international law. If an individual meets both rule 1 and Rule 2, and
has an international valid nationality, he is in a better position than one who does
not, in two respects (1) his state may not deny him entry to its territory.
(2) he will qualify for protection by his state while he is
abroad

B. Admission to the territory of the state of a national is mandatory when a state other
than that of his nationality wishes to expel him. The right to compel acceptance of
an individual – not to the individual being expelled. Indeed, even where the
individual does not want to return to the state of his nationality, he may be obliged
to do so unless another state will accept him.

C. Diplomatic protection of nationals. (will be discussed later) but suffice it to say here
that although a national qualifies for protection by his state while abroad, whether
he gets it depends upon the decision of his government. He may also be “protected”
in his own state while residing there because many states will refuse a request for
extradition by a foreign government of one of its citizens (nationals).

D. Conventional International Law. Today, the chief advantages of nationality are

conferred by treaty rather than by customary international law. The object of most

51
 treaties is to confer benefits to the nationals of the contracting states, eg. “treaties
of friendship, commerce, navigation, consular treaties, those concerned with
telecommunications, postal services, international air, rail and road travel. For
every treaty dealing with initial alliances, there are a hundred which confer
advantages and benefits upon individuals and corporations.

E. Most favoured nation clauses, frequently benefit nationals, by conferring upon

them, pursuant to a bilateral treaty, treatment within the territory as favourable as
that given to nationals of the “most favoured” foreign state. Sometimes, although
rarely, a bi-lateral treaty will grant to nationals of the other state the same privileges
as each state gives its own nationals. Most favoured nations clauses apply
prospectively, So Nation A’s later treaty with X increasing benefits of X’s nationals
may vest rights in nationals of states B, C, D, which have MFN clauses in their
treaties with A.

F. Proof of nationality for the purpose of a treaty. If under a treaty, benefits are
conferred on the parties’ nationals, the question becomes one of whether an
individual is a national not as defined solely under municipal (internal law) but
whether he is a national for purposes of the treaty. In the Flegenheimer case (US –
Italian Mixed Claims Commission, 1958) under the Treaty of Peace with Italy of
1947, Italy agreed to pay compensation to “nationals” of the war powers, including
US. Held, even though Flegenheimer produced a US “certificate of citizenship” it
was not conclusive and the claim was denied. Nationality is like any other fact, and
requires proper proof. Similarly, if one state presents a claim before an
international tribunal against another state based upon injury suffered by an
individual or corporation, the admissibility of claim depends on the claimant state
proving that the person or corporation possesses its nationality.

G. Acquisition and loss of nationality. A state may not have a nationality law and
international law does not require that it has one. For example, for many years after
its creation the Yemen Arab Republic had no nationality law. Generally the
question of a person’s nationality only becomes internationally significant if he
desires to go aboard. Possession of a passport is then normally sufficient evidence
of the holder’s nationality.

1. Passport and nationality. Passport is document issued by state attesting to

the bearer’s nationality. Issuance of passport does not require existence of
any national (internal) law but merely the decision of the government to
issue one to the applicant. States frequently prevent their nationals from
leaving their territory unless they are in possession of a passport. The
passport is the property of the issuing state, and the confiscation of the
passport by a host state (for example to prevent the bearer from returning to
the state of his nationality) is an inimitable and hostile act towards the
issuing state. In such situation, nothing can prevent the issuing state from
issuing immediately a new passport.

52
2. Effect of recognition of a state. Recognition of a “new” state, e.g. Namibia
on March 21, 1990 amounts to recognition of the right of that government
to speak for or represent the population within its territory from the moment
of recognition. “Populations” means all persons other than those of a
different nationality and other than those who are there in some capacity
other than as residents. Same rule applies to territory subsequently acquired
whether by cession or conquest. Soviet Russia e.g. claimed populations of
Lithuania and Poland by conquest in 1940, but US never recognized USSR
as the government of Lithuania or Poland’s people. Now US is recognizing
Lithuanians and Poland’s people as nationals of Lithuania or Poland.

3. Acquisition of nationality by individuals under Rule 2 (obligation of

international community to recognize nationality consistent with
convention, custom, general principles of international law). One of those
principles is that nationality may be acquired by birth, marriage or
subsequent choice. A person may acquire nationality through birth (jus soli)
– law of place of birth, or because of nationality of father (or if illegitimate
of his mother) where nationality of mother is different form that of father
some states (e.g. France) allow the child to choose the mothers nationality
upon coming of age. A married woman always acquires her husband’s
nationality. There is no reason why husband couldn’t acquire the
nationality of wife if municipal law permits. Nationality acquired by
subsequent choice is called nationalization of usually after a period of
residence.

No state can nationalize nationals of another state e.g. by imposing

nationality on all who buy property. At one time south and central America
Republics had laws that any person who acquired rent property would
thereby acquire nationality of the state where it was located but abandoned
the rule after vigorous national protest. Some countries e.g. W. Germany
given you a corporate citizenship (passport etc) if you have a highly -
capitalized corporation.

4. Loss of nationality by individuals. Laws of all states provide for loss of

nationality (i) against one’s will e.g. because of crime (2) voluntary
renunciation or (3) by acquiring another nationality through marriage or
naturalization
a) Deprivation The Universal Declaration of Human Rights states that “no
one shall be arbitrarily deprived of his nationality” (Article 15 –2). Article
8 of the Convection on the Reduction of statelessness (1961) permits
grounds of deprivation:
a) taking oath of allegiance to another state
b) other evidence or repudiation of allegiance to one’s state of
nationality
c) rendering service to or accepting compensation from another
state (especially for espionage).

53
 d) conduct seriously prejudicial to the vital interests of the state
of nationality

In addition to above, US and Russia law say that failure to return to the
territory to fulfill a national obligation (e.g. military)

b) Renunciation. Universal Declaration of Human Rights states; everyone

has the right to a nationality” (Art 15-1) if nationality is to be a benefit and
not a burden, it would seem that upon acquiring a new nationality a person
should be able to renounce a former one, but few states permit this,
preferring to decree that nationality is automatically under (a) through (d)
above

5. Dual nationality of individual. The variety of methods of acquiring

nationality leads to possibility of dual nationality. Thus, if nationality law
of state X is based on jus soli (law of birth right) and Y on jus sanguinis, a
person born in X of parents with nationality in Y would acquire the
nationality of both states at birth. Some states permit the child to renounce
one state in favour of nationality in the other upon attainment of the age of
majority. The Convention on the Reduction of Cases of Multiple
Nationality and Military Obligation in Cases of Multiple Nationality and
Military person with two nationalities the right to renounce one of them,
and be obligated to fulfill military obligation in the other. Nationals of one
signatory who acquire nationality in another, lose their former nationality.
Effect of dual nationality depends on where the issue is being judged. The
inside of British passport says;
“when in the country of their second nationality person of dual
nationality cannot avail themselves of the protection of the
representatives of the state of their first nationality against the
authorities of the foreign country, and are nationality from any
obligation (such as military service) to which they may be liable
under the foreign law.

Above is a valid statement of general international law where a dual national

seeks diplomatic protection while in some third state, it is not answerable to
both states and must determine which state it will treat as the person’s
national state on the basis of the “effective Link” test that is with which state
has the dual national the most “real connection, “the third state is sole judge
of this and only has to recognize the nationality of that state only.

6. Nationality of Corporations
a. How nationality is decided—under the law of the state whose
nationality is alleged. In U.S and UK it has nationality of state of
incorporation: Under laws of war, sometimes an approximation of
the domicile of the directors and of controlling share holders
determines whether a corporation is “enemy” or “neutral”. some

54
 times treaties between countries will set out which criteria will be
used to determined “nationality” of a corporation. The mention of
“corporation” in peace treaties must thus be interpreted with
particular caution. Nationality of corporations in France is based on
registered office (siège social); centre of control (siège réel) in
Germany or principle place of business in Italy centre d’ exploitat.

b. Dual nationality of corporations. The multiplicity of acceptable

criteria for according nationality to corporations may lead to a
corporation having a dual nationality. The same rules applying to
dual nationality of corporations in UK with its principal place of
business in Italy, would have (by British law) British nationality and
by Italian law (principal place of business) an Italian nationality

III DIPLOMATIC PROTECTION involves (1) State exercising protection, (2)

state against which protection is being furnished, and (3) the individual
being protected. “Diplomatic protection” is the protection by a state of its
nationals abroad. A later section will deal with treatment by a state of aliens
within its territory, and another section will deal with international
protection of Human Rights from abuse by states in general, and the state
of residence in particular.

A. DIPLOMATIC PROTECTION OF INDIVIDUAL NATIONALS.

Although nationality entitles bearer to seek protection whether he receives
it depends on the discretion of the government. Thus a national has no right
to diplomatic protection. Moreover, if a claim is made by a government on
behalf of its national such person has no right under international law to
share in it.

Effective nationality was held to be a pre-requisite to a state’s right to

protect its citizens that is, the national must be “more closely connected with
the population of the sate confirming nationality than with any other”
(Nottebohm, I.C.J, 1955) Nottebohm, a German national, was granted
Liechtenstein nationality in 1939, (probably causing loss of German
nationality) but at all times he was a resident of Guatemala from which he
was expelled as an enemy national. His sole connection with Liechtenstein
was a visit to his brother. Held, he had acquired nationality in a state with
which he could not prove any effective link. Hence, Guatemala was not
obliged to recognize Lichtenstein effort to exercise diplomatic protection
on his behalf. Most authorities agree that the rule in Nottebohm can only
apply to nationality other than at birth, such as through naturalization.

B. DIPLOMATIC PROTECTION OF CORPORATIONS, it is well settled,

can be exercised in favour of a corporation which has its nationality. There
is some authority for the rule that a state cannot assert protection over
corporations incorporated within its territory but controlled by share holders

55
 who are nationals of the country against whom protection is being exercised
e.g. America could not protect a US corporations whose controlling
nationals are all Dutch in an international case against the Netherlands.
However, a third party state cannot assert this argument. Thus in Agency
of Canadian Car and Foundry Co. Case American – German Mixed Claims
Commission, 1939) US claimed right to protect Agency Corporation
incorporated in US but Germany challenged the US right to protect on
ground that the sole shareholders was a Canadian corporation. Held,
Germany as a third country could not have standing to assert this defence.

PROTECTION OF SHAREHOLDERS’ investments today is the most

common form of diplomatic protection. However, in the Convention on
settlement of Investment Disputes between states and the Nationals of other
states (1965) drafted by International Bank for Reconstruction and
Development (World Bank) provides that disputes with a company and its
foreign corporate investors will be settled by conciliation or arbitration. An
International Centre for the settlement of Investments Disputes is seated at
the World Bank Headquarters. In a particular dispute it constitutes
conciliation commissions and arbitration tribunals to resolve the matter.
This procedure excludes the use of diplomatic protection. The term
“investment” however, does not include shareholders of a foreign
corporation, and their rights must still be asserted by the government of
which they are nationals. Thus, in the Shufeldt case (M.S.) – Guatemala
Mixed claim commission 1930, Guatemala granted Shufeldt, an American
citizen, a concession (eg to bottle and sell coke) on condition he create a
Guatemala corporations and assign the concession to it, which he did. After
2 years, Guatemala annulled the concession, bringing the corporation’s
operations to a standstill. Guatemala argued that: (a) the company
continued to exist (b) it was sole concessionaire at time of cancellation, and
(c) it was a corporation with Guatemala nationality. Held: Admitting all
this it, was not the rights of the company, but Shufeldt’s personal rights as
a shareholder in the company; international law was not bound by
Guatemala “national” (municipal) law or by anything but “natural justice,”
which required putting aside the legal person in favour of Shufeldt’s
interests as a shareholder.

IV ALIENS OR NON-NATIONALS

A. THE CATEGORY OF NON-NATIONAL. The division commonly drawn

between nationals and aliens leaves out the intermediate category of “non-
nationals”, the latter category including aliens. A citizen of Uganda in the
US is neither a US national, nor an “alien” – he is a non-national. “As such,
he has while within the territory all the rights, capacities, obligations of a
national (except in relation to certain political rights) Nan-nationals
including refugees and stateless person

56
B. Aliens, are nationals of foreign states, and as at wartime, may be menace.
Are often interned (Japanese in World War II). In peacetime states may
expel aliens. Every state has an interest in ensuring reasonably tolerable
conditions for aliens and in demanding similar treatment of its nationals
aboard – especially in this era of tourism. Hence rules of international law
show an uneasy balance between (1) allowing states to treat aliens as they
please, and (2) insisting on a minimum standard of decent treatment.

1. Entry of aliens can be prohibited, or subjected to conditions by a state

as it sees fit. It may admit or refuse an alien at any time and is
accountable to no one. Usually a valid passport and visa is required.
(None in Europe), by treaty.

2. Treatment of aliens, according to a minimum standard is imposed by

international law, and any state that does not live up to it may be liable
in a reparation claim based upon the concept of state responsibility,
discussed later. There is no right of aliens or their state of nationality to
claim equal rights with the nationals of the country where the aliens are
situated. States, e.g. can deny aliens right to vote, right to acquire real
property, own ships or aircraft, exercise certain professions, or benefit
from legal welfare, or old age benefits special conditions in respect of
mobility can be imposed, eg registering at police station, not accepting
them employment, remain in school, breach of such conditions leading
to expulsion. Except for protection of the law,” eg access to courts,
police protection of his property, etc and correspondence Obligations
including payment of taxes, or military service.

V IMMIGRATION, EMIGRATION, EXTRADITION, EXPULSION,

ASYLUM

A. IMMIGRATION can be restricted at the discretion of each state

while tourists and students are usually admitted freely, permanent
residence, conducting business, or employment are subject to
regulation and conditions. Those physically, morally or even
socially unfit may be excluded, and often usually the “breadwinner”
is admitted, most states also admit dependent members of family.

B. EMIGRATION is not subject to rules of international law.

Totalitarian states permit unqualified immigration. However, under
international law no state is permitted to prevent emigration of
resident aliens or prevent them from taking their property, subject to
taxes, currency controls.

C. EXTRADITION is a check on a lawbreaker attempting to escape

justice by crossing the frontier. Having committed no crime in the
state of refuge, police have no cause to arrest but if there is an

57
 extradition treaty, between states A and B, A can demand B deliver
over a refugee who committed a crime in state A. Some states of
nationality, under a constitutional provision, will try in their own
courts, a criminal offence committed by their national in a foregoing
country. Extradition treaties include objective crimes (murder,
robbery, rape, assault) and exclude “subjective crimes (treason,
espionage, political offences). Request for extradition must be
accompanied by an affidavit or other evidence establishing facts of
crime and warrant for arrest. If no treaty, no extradition – It is
principal of International law that a surrendered person may not be
tried or punished for an offence other than that for which he was
extradited.

D. EXPULSION of aliens at discretion is a sovereign right of a state,

but international law requires that the expulsion be not arbitrary.
Thus it would seem if many of the “Asians” that were expelled by
Amin were, in fact, India’s nationals, she could file claims against
Uganda on their behalf. However, even in peacetime, mass
expulsion of aliens of certain nationalities is not treated, in state
practice, as illegal in itself, but only when accompanied by extreme
force, cruelty, or generally in human conditions. Hence the state is
responsible in international law for the manner of the expulsion
rather than the expulsion itself.

1. Expulsion is also known as deportation, is an executive order

that a person leave the state and differs from extradition in
that (a) there is no request by another state to deliver that
person; (b) the expelled person’s presence in the expelled
state is considered undesirable and (c) it is put into effect
immediately when the expelled person has left the territory.
Although the state of nationality of an expelled person has a
duty to accept him, there is authority for withdrawing a
deportation order against a “stateless” person where no state
could be found to accept him. (Staniszewski - versus –
Watkins U.S District Court 1948) Reconduction is a process,
lawful in some states, whereby police arrest vagabonds,
persons without papers or passports, or residence or work
permits and forcibly conducts them to frontier sending them
back to state of last residence, or to his state of nationality
which is under duty to receive him. Grounds for expulsion
are many, but an alien taking an active role in the political
affairs of “host” state is universally recognized as a valid
ground for expulsion. Mass expulsion of aliens has been
effected in recent years in Switzerland, Ghana, Uganda,
Federal Republic of Germany. Is usually effected by letting
work permits expire without renewal; canceling work

58
 permits and are often triggered by econ. Conditions, eg
unemployment. This may provoke retaliatory action against
expelling state by the state of the expelled alien’s nationality.
Power of state expulsion of aliens may not be arbitrarily,
abused. State of nationality can demand expelling state to
give a reason. In Boffolo Case (1903), an Italian was
expelled from Venezuela for publishing an article
unfavorable to local authorities, but Venezuela refused to
state the reason: Held: it must state reason, and failing to do
so, must suffer consequences. Since discrimination against
freedom of press was central to Venezuela constitution
damages were awarded.

D. ASYLUM has never been doubted in International law, that is, the right of a
state to permit political offenders or refugees to enter (Carnegie Manual of
public international law. Max Sorenson, 491) The individual has no right to
asylum. However, under Article 14 of the Universal Declaration of Human
Rights he has the right to “seek” asylum from persecution. Where a claim for
asylum involves unusual circumstances, the state granting asylum will usually
waive the requirements of its immigration laws. State from which person fled
cannot treat asylum as a hostile act, since it state granting it is exercising a
sovereign right. Diplomatic asylum is distinguished from territorial asylum in
that an embassy grants asylum to a person seeking protection from the
authorities of the state in which the embassy is situated. The inviolability of
embassy premises prevents forcible arrest, but once he leaves the embassy he
loses his protection, the embassy has no right to insist on safe conduct. In haya
de la Torre case (ICJ 1951) the former minister of Peru sought asylum in the
Columbian embassy which asked Peru to grant him safe conduct to the
Columbian border Peru refused Held: Columbia had failed to prove existence
of any rule of general international law that supports a right of self conduct to
the border.

IV STATELESSNESS REFUGEES, SLAVERY

A. STATELESS PERSON is one who does not have, according to its

law a nationality in any state. Situation can arise through conflicts
of nationality laws, change of sovereignty over territory or
denationalization by the state of nationality. A person without a
state is beyond the protection afforded under traditional
international law. International efforts to ameliorate take 2
protections to those who become stateless. Convention on Conflict
of Nationality laws (1930) and Convention on Reduction of
Statelessness (1961) provides contracting states will accord
nationality to a stateless person if
(a) He was born in their territory (jus soli) or

59
 (b) If one of his parents had, at the time of his birth
outside the territory, the nationality of that state (jus
sanguinis)

B. Refugees are those who have fled from state of origin out of a well-
founded fear of being persecuted for reasons of race, religion, social,
nationality or political opinion. Refugees may thus include both
nationals and stateless persons. A refugee, being in flight from state
of origin, no longer enjoys the protection of that state.

1. Travel documents for refugees. If he wishes to travel from state

of refuge, he is issued special travel documents, including
“return” clause within stated period of time. Under European
Agreement on Abolition of Visas for Refugees 1960, visa
requirements have been waived.

2. Protection by states – is not guaranteed or a matter of right for

one to whom the sate has given special travel documents to go
abroad, but progress is being made e.g. Art 2(2) European
Convention on Consular Functions concerning the protection of
refugees 1969 give the consular officer of refugee’s state of
residence the right to protect him and to “defend his interest and
rights”

3. Protection by joint international action resulted from vast

increases in refugees from 2 world wars, communist revolutions
in China, S.E. Asia (estimated at 16 million in 1952 and 14
million in today (1890). U.N. General Assembly Resolution 428
(v) 1950 set up the office of High Commissioner for Refugees
implemented by a series of conventions between states, i.e.
Convention Relating to Status of Refugees 1951, applies to
refugees from any state “in Europe”, seeks to facilitate
assimilation of refugees into new nationalities.

4. Status or stateless persons and refugees in the state that has

received them is governed by Convention relating to the Status
of Stateless persons of 1954, Convention relating to the status of
Refugees 1951, and the Protocol of 1967. They guarantee free
religion, treatment of children to education, labour laws relief
assistance and most favoured national treatment, in respect of
employment have better treatment than aliens because they
cannot be expelled except to preserve national security, and then
only by due process. Moreover, refugee is not to be returned to
any frontier or country where life or freedom would be
threatened on account of race, religion, nationality, political
opinion or membership in particular social group.

60
 C. SLAVERY: Complete abolition was object of The Slavery
Convention of 1926 as amended 1953, giving the U.N. certain duties
to implement it. Supplemental Geneva Convention of 1959, sought
to abolish bondage, serfdom, bride price, exploitation of child
labour, transportation of slave by ships or aircraft result in ipso facto
freedom. The Universal Declaration of Human Rights and the
International Covenant on Civil and Political Rights prohibit slavery
and slave trade.

VI. MINORITIES, (unlike protection of aliens, refugees and stateless persons)

is concerned with international protection of certain groups of nationals
from discrimination by their own states. The “minority” might be based on
language, religion, ethnic or national origin. This protection was first given
in Articles 86 and 93 of Treaty of Versailles, 1919, also Treaty of Peace
concluded with Austria, Bulgaria, Hungary, and Turkey after 1st World war,
likewise with Czechoslovakia, Greece, Poland, Romania, Danzig,
Germany, guaranteed;
a) like, liberty, free exercise of religion of all inhabitants;
b) equal treatment before law, some civil and political rights to
all nationals (what about Hitler and Jews)
c) same treatment and security in law and in fact to all
linguistic, religious, or ethnic minority groups of nationals
d) right to such minority groups to establish schools, religious
institutions, use their own language for publications, for
public meetings and courts.

The U.N. General Assembly 1966 International Covenant on Civil and

Political Rights mentions right of minorities to their own culture, religion
and languages, but phrase is now replaced by latter language “the protection
of human rights for all people without distinction as to race, sex, language,
or religion.

VII. HUMAN RIGHTS AND DUTIES. For every right there is a

corresponding duty, but in this area, the “duties” fail upon the states. Hence
we are concerned here with the protection human rights against states and
recognition of human rights by states.

A. REGIONAL STATEMENT ON HUMAN RIGHTS

1. Europe 1950 Covenant for Protection of Human Rights and

Fundamental freedoms modeled under Universal Declaration discussed

61
later. The European Social Charter, 1961 adopts most of rights set out in
International Convention on Economic Social and cultural, Rights

2. America 1969 OAS signed international – American Convection on

Human Rights, which becomes effective when eleven states ratify it.

CATALOG OF HUMAN RIGHTS FUNDMENTAL FREEDOMS

1. Civil and Political Rights: Rights to life, liberty, security of person;

freedom from slavery and servitude, freedom from torture and inhuman
treatment, freedom from arbitrary arrest and imprisonment, right to vote and
to participate in government, the right to equality before the law, and equal
protection of the law, fair trial including the presumption of innocence; non-
retro-activity; freedom of conscience and religion, opinion and expression;
right to peaceful assembly and association, freedom of movement and
residence; the right to respect for private life, home, and correspondence,
the right to marry and found a family

2. Economic, social and cultural rights are right to work, to adequate

standard of living, safe and healthy conditions; just and favorable conditions
at work; rest and leisure; to education and to participate in cultural life of
the community.

3. Additional rights appearing in Universal Declaration. Right to

recognition of a person before the law, right to nationality. Right to leave
any country, including one’s own, the right to return to one’s country, right
to equal access to public service; the right to periodic creations, right to own
property; to equal pay for equal work; right to special protection for
motherhood and childhood.

4. Rights mentioned in the Conventions (1976) but not in the Universal

Declaration (1948)

a. Civil and Political rights: freedom from forced or compulsory labor;

freedom from imprisonment for breach of contract where unable to
perform; freedom of an alien from arbitrary expulsion; right to
compensation for unjust convictions.

b. Economic, social and cultural rights. Right to strike, right to highest

attainable standards of health, right to protection of interest from
scientific, literary and artistic productions.

5. Beneficiaries of above rights are a broad category of everyone within the

jurisdiction of the party signing. Only exception in the European Social
Charter is where beneficiaries are restricted to nationals of member
states.

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A. INTERNATIONAL PROTECTION OF HUMAN RIGHTS is achieved
when the state is made responsible to some international body or
authority to enforce the obligations of the state in the field of human
rights. The distinction between civil and political rights on the one
hand, and economic, social and cultural rights on the other hand, is vital
because the mechanisms for the protection of each are quite distinct.

1. Civil and political rights

a) Universal texts. Only International Covenant on Civil and Political

Rights contains measures of protection: Party states must submit reports
on the measures they have adopted to give effect to the rights mentioned
in the Covenant (Article 40) Art. 28 establishes an 18 – person human
rights committee (acting in a personal capacity and not for any state),
nominated by party states and elected in special session conducted by
Secretary General of UN. Committee studies reports and submits with
comments to Economic and Social Council of UN and to members
nations.

b) Regional texts: European Convention on Human Rights Remedies

for violation by a contracting state are given in favour of other
contracting states and also in favour of individuals. State applications
may be automatically lodged against a contracting state. Individual
application require a separate and additional declaration of acceptance
by the attending state. Now enforced by the European Commission on
Human Rights.

c) European Commission on Human Rights. Has 15 members who act

in a personal capacity, elected by Committee of ministers of Council of
Europe, from names supplied by the parliamentary members of the
Consultative Assembly. Both states and individuals applications
(petitions) are accepted. The commission’s functions are
i. To see whether applications satisfy conditions of admissibility if
so,
ii. To investigate with a view to affecting a friendly settling
iii. To submit report to Committee of Ministers of Council of Europe,
declaring whether a violation of the convention within 3 months,
the state of victim national, or victim, or changing state can bring
before

d) European Court of Human Rights composed of one judge from

each member state (irrespective of whether it ratified the
convention). The parties are the charging state and the accused state,
but court has no jurisdiction unless there is a separate blanket
acceptance of jurisdiction or one for a particular case. Where an

63
individual is involved the commission presents the case not so much
as a plaintiff as in the role of amicus curiae Committee of Ministers
implements the judgment

e) Beneficiaries of remedies

1) State applications—Mere fact of being a contracting party to

convention gives a state locus standi to file complaint. No
relation with individual victim or the offending state need be
alleged e.g. application by Scandinavian Countries and
Netherlands - versus – Greece (1961) was for protection of
Greek people - versus – their own government.

2) Individual Application. Once a charging state has accepted

by declaration an individual petition, it may pursue the state
application remedy on behalf of everyone “similarly situated”.
“Everyone means all individuals (irrespective of nationality)
groups, corporate and unincorporated bodies, and non
governmental associations.

c) Inter-American Commission of Human Rights, an organ of

OAS, was established by OAS. Council in 1960. Since
November 1965 has accepted petitions from individuals. The
commission represents the member states. Seven members are
elected in a personal capacity by the General Assembly.
Commission examines petitions, recommends to governments to
adopt measure to increase protection of human rights,
investigates manner in which internal laws ensure protection of
human rights, mediate friendly settlements, draw up reports on
the petition and sends it to states concerned, together with
recommendations. If dispute is then not submitted to court,
commission may give an opinion, conclusion, and
recommendation. It approved by majority vote, and state does
not comply, report is published.

d) Inter-American Court of Human Rights Functions and power

parallels European Court, but has only 7 members. Only states
which are parties to the convention and the commission can
bring cases to the court. If court finds a right has been violated
it can order party prejudiced to be guaranteed the benefit of the
right or freedom violated.

e) Beneficiaries – any contracting state, person, group of persons,

non-governmental entity recognized within “at least one” state
of OAS can submit petitions.

64
 2. Economic, Social, and cultural rights

b) Universal texts: the International Covenant on Economic,

Social, and Cultural Rights, requires contracting states to file
reports setting out how they are protecting these rights;
reports are examined by Economic Social Council for UN
(ECOSOC), which may submit report to the Commission on
Human Rights, for study and recommendations.

c) Regional texts: the European Social Charter, Committee of

7 members acting in personal capacity, are nominated by
contracting states and appointed by Committee of Ministers
of the Council of Europe, to ensure application of provisions
of charter. Each contracting state is required to submit an
annual report, which the committee examines and submits to
sub-committee of Governmental Social Committee of
Council of Europe. Consultative Assembly of Council of
Europe stimulates members to take appropriate action.

d) Inter- American Convention on Human Rights deals with

both economic and social rights. Parties undertake both on
national and by international cooperation, notably economic
and technical, to take, within the framework of available
resources and by adoption of legislative provision or by any
other appropriate method, the measures designed to ensure
the progressive enjoyment of the rights which flow from the
economic, social, educational scientific and cultural
standards laid down in the charter of the OAS.

4. INDIVIDUAL, COLLECTIVE, AND GROUP RIGTHS, Individual

rights are inherent in man’s being, eg life liberty, decent living standard,
freedom of expression. Collective rights are those which individual
acquires as result of living in a collectivity, or society, eg marriage,
freedom of association, to join a trade union, or to vote. Group rights
are those which exist not in relation to the individual but only to the
group, such as the rights of minority groups, right of peoples to self-
determination. Whereas individual rights are basic, collective rights
may well take a lower priority in less developed states. Before a
question of group rights, can be raised, a group must be shown to exist.
While objective criteria exist to demonstrate existence of minority
rights, there are often problems of defining other kinds of “groups”

1. Right of self-determination is most important group right of a

“people” to become a state. Assertion of this right can be traced through
3 stages:

65
 a) Chapter XI of Charter of UN. “Declaration Regarding Non self
– Governing Territories, in particular Art 73, states;
“members … which have responsibilities – for the
administrative of territories whose people have not yet
attained a full measure of self-government recognize the
principle that the interests of the inhabitants are paramount,
and accept … the obligation to promote … [ ] well being,
and to this end (1) to ensure their political, economic, social
and educational advancement, (ii) to develop self-
government”.

b) Resolution 1514 (XV) adopted Dec 14, 1960 by General

Assembly on the Granting of Independence to Colonial
Countries and peoples, which declares that: “the subjection of
people to alien … domination constitutes a denial of
fundamental rights”

c) The International Covenants on Economic Social and Cultural

Rights and on Civil and Political Rights each declare in Article
1 that “all peoples have the right to self determination.” By
virtue of that right they freely determine their political status.

Plebiscites – are one means whereby a “people” may determine its

2.
own political future status or the plebiscite to determine the future
status of the Trust Territory of the Northern and Southern
Cameroon’s in 1960, the General Assembly of UN decided to give
the “people”: two choices only: (1) that of becoming independent
(from the Trust) as part of the state of Nigeria, or (2) or becoming
part of the state of (former Frances) Cameroon’s. They refused to
add a third choice – that of becoming an independent state. One
could argue that by this decision, the General Assembly itself denied
the inhabitants of these territories the right of self determination.
LAWS OF TREATIES

The Vienna Convention on law of Treaties 1969 effective 1980 states: it is a “codification
and progressive development of the law of treaties”. The rules of customary law continue
to govern questions not covered by the convention. It applies to all treaties concluded
thereafter. Article 85 sets out a comprehensive code of rules governing law of treaties.
References which follow are to Articles of the Vienna Convention.

NATURE AND FORMATION OF A TREATY

The rule “pact sunt servanda” predates international law and is the basis of the law of
treaties. Treaties are binding on the parties to them, once in force, and must be performed
in good faith. A state may not justify non –observance by reference to any impediment
arising from its international law.

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A. DEFINTION: A treaty is an agreement between states in written form and governed by
international law. Note that sovereign states do have the capacity to make oral agreements
which are binding under international law. For example, in the Eastern Greenland Case
(P.C.I. J. 1933) in an oral conversation wherein the Danish Minister discussed extending
Danish influence to Greenland to which the Foreign Minister of Norway said it “would not
make any difficulties” and received oral assurances that Denmark would be passive about
Norway extending its influence to Spitzebergen. A unsigned record was made of this
discussion. Held: The transaction was an enforceable undertaking; the quid pro quo for
Greenland was Denmark’s disclaimer of interest in Spitzebergen. As a result, Norway was
“under an obligation to refrain from contesting Danish sovereignty over Greenland” This
illustrates that what might at first glance appear to be a unilateral act may in effect be an
offer and acceptance. A written treaty arises where one diplomatic send s a note or letter
with an offer or proposal and the reply assents to it. The two documents together constitute
the treaty.

B. Agreements not governed by international law are those between two sovereign states that
are not international in character, eg contracts for sale of commodities or arms, or lease of
property, often where some third party (not a sovereign state) is closely involved in the
transaction. While in one sense such agreements are “international” they are not governed
by international law.

C. Intention of parties to enter into a legal relation is an essential element. Statesmen

sometime issue a joint statement of future intent, eg the Yalta “Agreement” (Stalin,
Churchill) had no legal effect and did not create rights or obligations under international
law. Similarly an agreement to conclude an agreement, if there is no intent to create rights
and obligations between themselves is not a treaty. Whether an international instrument is
a treaty is to be ascertained from the four corners of the document, and not from the names
given to it. Common synonyms for “treaty” are convention, agreement, declaration,
protocol, act, final act, exchange of notes, modus vivendi, arrangement, fact covenant,
charter, and statute. Agreements between Pope and as state for safeguarding interest of the
Church are concordats.

D. Language of treaties – often written in two, but text of treaty often recites which is
authentic, if equally “authentic” the terms of the treaty are presumed to have the
same meaning in each text (art.33)

E STATE REPRESENTATIVES are persons states must act through in negotiating,

signing, ratifying a treaty. The persons who represent the state are obliged to
produce their credentials, often called “full powers” Heads of state, government,
or diplomatic mission heads are assumed to have full powers to deal with the state
with which they are accredited. However, if he is in “manifest violation” of
international law, a state may disown an act of its representative.

F. CAPACITY TO MAKE TREATIES (Art 6) Every sovereign state possesses the

capacity to conclude treaties. But before concluding one a state should satisfy itself

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 of the international capacity of the other parties to conclude a treaty. States cannot
subsequently allege the incapacity of the other party to conclude the treaty as a
ground for themselves refusing to apply its terms.

G. THE CREATION OF A TREATY is in stages: (1) Negotiating text, (2) Adoption

of text (if an international conference, by a two thirds majority) (if within an
“organization by whatever majority as required by the rules, otherwise
unanimously) (3) authentication (approving accuracy of the text). These 3 stages
“conclude “ a treaty. A state can express consent to be bound by the treaty, before
or after it has entered into force. If before, state is called a contracting state if after
it is called a “ party” to the treaty. A “third state” means a state not a party to the
treaty (Art 2)

H. MODES OF EXPRESSING CONSENT TO BE BOUND BY A TREATY

This is by signature, ratification, or accession. If it arises by exchange of notes or

letters, the act of exchange may be viewed as an expression of consent.

1. Signature will have effect of expressing consent of the state when its terms so
indicate. Even oral evidence of agreement that signatures will bind the states is
sufficient, providing signing parties had “full powers” But if language is used in
treaty “subject to ratification”, the signature only indicates completion of
intermediate step.

2. Ratification. Treaty usually specifies if it is “subject to”, although it can be

established by negotiating states that such was the intent. Ratification can also be
required because the accrediting “full powers” of the negotiating representatives so
state. Terms “acceptance” or “approval also have some meaning as “ratification”.

3. Accession. If states do not qualify to become parties to a treaty by signature

or ratification they may accede to its terms. Accession is permitted when treaty so
provides, when it was intent of parties to permit accession, or by subsequent
agreement of all the parties.

I. ENTRY INTO FORCE must be distinguished from entry of force of the treaty in
relation to a particular state. Entry into force of the treaty is spelled out in treaty in
conditions precedent to being effective (e.g. manner of expressing intent to be
bound, manner and date of treaty’s entry into force the question of reservations.
Nearly always treaty contains a provision about entry into force. Most common
provision is three months after the deposit of the instrument of ratification. Entry
into force, in relation to a state. If as Vienna Convention states, treaty enters in
force on the 30th day following date of deposit of the 35th instrument of ratification
or accession it both enters into force in relation to those 35 states when the 35th has
deposited and 30 day elapses. In relation to 36th state, treaty is in force as to it 30
days after it deposits ratification or accession instruments.

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J. RESERVATIONS a state may wish to become a party to a treaty with reservations,
i.e. to agree to be bound by most, but not all, of the provisions of the treaty.
Example: a reservation after Versailles on League of Nations not to be a member.

1. Legal effect of reservations, such that a state may not demand of allegiance
of reserved portions by other parties eg US reserved right not to join the League of
Nations. Reservation of a bilateral treaty has the same effect as an amendment and
both sides must agree to it to be binding. Example in a multilateral treaty in force
between states A,B, and C where D proposed to enter with reservations such
reservations do not affect treaty as regards relations of A, B, C, with each other. It
only affects relations between A – D, B – D and c – D. Suppose treaty provides
each state will indemnify injury of citizens to the other states caused by its
negligence, and A, B, C sign. D accepts later, subject to maximum liability of one
million shillings. A accepts reservation and both A and D are subject to one million
shillings limitation. A is still liable to B and C’s citizens without limitation. If C
objects and refuses to accept D, the treaty does not apply between states C and D.

2. Prohibited reservations arise where terms of treaty itself prohibits

reservations. One exception was recognized in the case of Reservation to the
Convention on eth Prevention and Punishment at the Crime of Genocide [I.C.J.
1951] where the court said;
“a multilateral convention is the result of an agreement freely concluded
and none of the contracting parties is entitled to frustrate or impair, by
means of unilateral decisions the object and purpose of the convention.”

This rule has been confirmed in the Vienna Convention. This provides
“Reservations incompatible with the object and purpose of the treaty are prohibited.

3. Negotiated reservations can be anticipated by the parties. A useful

technique is for a group of state to decide at the negotiation stage the precise text
of reservations which will be permitted and to prohibit any other reservations by
the terms of the treaty. (Take it or with the spelled out reservations, or leave it”).
(They can also only permit a named state to make a reservation

4. Acceptance and refusal of reservations. “No state, in its treaty relations,

may be bound without its consent” (Genocide case). A reservation formulated by
a state wishing to become a party to a treaty, must therefore be accepted or rejected
by each state already party to the treaty. Reservations authorized by the treaty itself,
if adopted by a state proposing to be a party to a treaty already in force, do not have
to be accepted by the states which are already parties to the treaty. If such
reservations are not already spelled out in a multi-lateral treaty in force, and an
incoming state proposes adopting the treaty subject to a reservations, acceptance of
the reservation of the states already party to the treaty will be implied after failure
to react after 12 months have elapsed (Vienna Convention 69 on the Law of
Treaties’). In accepting, state may (1) deny any treaty relations or (2) acknowledge
a treaty relation as modified by the reservation.

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5. When consent containing a reservation is effective. The expression of the
reserving states consent to be bound becomes effective even if one state accepts it.
One type of treaty, e.g. Treaty of Rome may by its terms provide that acceptance
may be required by all existing parties before the reserving state’s instrument of
consent become effective.

A. AMENDMENT procedure is same as that for the formation of the treaty

unless some simplified procedure is provided in the treaty itself. Thus, all parties
must agree on the text of the amendment, adopt and authenticate it and each express
consent thereto. Until in force for all parties, the amendment is effective only
between the signing parties, and the original treaty remains in force for those who
have not yet signed the amendment. This transitional stage can last a long time, eg
Convention for Pacific Settlement of International Disputes (1899) was signed by
UK in 1900. An amendment was drawn up in 1907. The UK become a party to
the amendment not until 63 years later in 1970.

B. MODIFICATION is sometimes desired by some but not all of the states to

a multilateral convention, and such modification may even be permitted by the
terms of the convention (treaty). If not, states desiring modification inform all
parties, and invite them to join negotiations or object. Objection is valid only if
modification is incompatible with the object and purpose of the original treaty.
(Vienna Convention on the Law of Treaties )1969) entered into force 1980, Article
41) “Modification” is also synonym for “amendment”

C. APPLICATION

1. Treaties and third parties. Treaties apply only to party states and cannot
create rights or obligations for a third party without its consent. Such third party
must expressly accept obligations, but acceptance of rights is often presumed so
long as the 3rd party state does not express a contrary intent. However, if a rule
(already binding as a rule of customary international law) is set forth in a treaty,
such rule is still binding on 3rd party states not withstanding that they are not parties
to the convention.

2. Territorial application to the entire territorial of a state results from a treaty

unless a different intent is expressed. Where a frontier is moved a states’ existing
treaties apply to any new territory acquired, as a general rule. Thus, in Society
Lebrun V Dussy (Brussels Court of Application 1926) A France – Belgium
convention of 1899 on reciprocal enforcement of judgments was held applicable to
a decision of a court in Alsace after Alsace – Lorraine was annexed to France (and
taken from Germany) following World War I’s Treaty of Versailles (1919).

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 3. Application in time. The provisions of the treaty will not apply retroactively
to facts or situations occurring prior to the date of entry into force, unless a different
intention appears.

D. INTERPRETATION, Rules are similar to contract interpretation rules e.g. (1)

Vienna Convention on Law of Treaties says
“A treaty shall be interpreted in good faith in accordance with the ordinary
meaning given to the terms of the treaty in their context and in the light to
its object and purpose.”

1. Ordinary meaning is the meaning of terms in the ordinary use of language

and the most likely meaning of the written text. Vienna convention, where intention
of parties warrants, permits setting aside the ordinary meaning for a special
meaning.

2. Intention of parties (overall, and not of particular state) and intention of

original negotiating states (and not non-negotiating states who later adopt and ratify
treaty) that is looked to in order to ascertain intention. The context of a treaty is
ascertained from preamble, general content and annexes, or appendices, (but not
the title), and subsequent agreements, or amendments regarding its interpretation.
Preparatory work (travaux pre-paratories) is permitted only as “supplementary”
means of interpretation and then to confirm general rule of interpretation. However
one can use travaux preparation if there is an ambiguity.

3. Object and purpose is stated in a clause of treaty. Where treaty is a simple

contractual bargain, the object and purpose may be obvious. Where treaty is more
complex, eg one that establishes an organization, such as UN that will go to work
on its own account, the objects and purposes clauses may be more obscure.
Therefore, Vienna Convention provides that any “subsequent practice” in applying
the treaty is to be taken into consideration. Subsequent practice might not be that
of the parties themselves, but that of the organization (eg UN0 created by the treaty.

4. Surrounding circumstances, under Vienna Convention are only given same

weight as travaux preparatoires. However as they relate to the objects and purposes
of a treaty.

E. INVALIDITY can prevent a treaty that is apparently “in force” from being
operative. If the ground for invalidity is such that it is void, the treaty ceases to
have nay legal effect. If it is voidable, the treaty may become invalid as to a
particular party or parties. Cases of invalidity must be distinguished from cases of
suspension or termination. Two grounds can cause a treaty to be void.

1. Conflict with jus cogens, according to Vienna Convention on law of Treaties

(1969), is a treaty that conflicts with a “peremptory norm of general international
law, and is void.

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 2. Coercion of a state by the threat of use of force, when used to obtain execution
of a treaty, such force being in violation of the principles of international law
contained in U.N Charter is void. Somewhat new a contrary rule existed before
World war I, and possibly between the two world wars. (eg UK – German, treaty
on Austria – Sudetenland Anschlus).

3. Invalidity of states consent to treaty due to fraud, or corruption or coercion

of a states representative are grounds for invalidating a treaty. Likewise where there
is a limitation an authority of state A’s representative, known to state B, a treaty
negotiated or executed in excess of such authority may be invalidated. An express
consent or signing of a treaty in excess of a constitutional (internal) limit on the
authority of consenting or signing representative will ordinarily not be grounds for
invalidating the treaty unless the constitutional or other legal limitation would have
been, (per Vienna Convention).
“objectively evident to any state conduction itself in this matter in
accordance with normal practice and good faith”

4. Consequences of invalid treaty. It is void, and its provisions have no legal

effect. The parties are under an obligation, so far as possible, to undo anything
done under the treaty.

F. SUSPENSION. A treaty terminated cannot be revived whereas a treaty suspended

may be, and generally will be revived when the circumstances leading to suspension
no longer apply. If not inconsistent with the terms two parties to a multilateral
treaty can agree to suspension without the consent of other parties. The terms of a
subsequent treaty may suspend or terminate a prior inconsistent treaty by
implication. Only a material breach (violation of an obligation essential to its
purpose, including outright repudiation of treaty can be justification for suspension
or termination

G. TERMINATION

1. Supervening impossibility of performance. The permanent disappearance

or destruction of an object indispensable for the execution of a treaty terminates the
treaty. If for the impossibility is temporary it may be invoked as a ground for
suspending the treaty. Impossibility of performance cannot be invoked by a state
that has itself has caused the impossibility by breaching an international obligation.

2. Fundamental change of circumstances. Unforeseen change of

circumstances which constitute an “essential basis” of the consent of the parties can
operate to terminate or suspend the operation of a treaty, provided the changed
circumstances “radically transformed under the treaty. “ A treaty constituting a
boundary cannot be affected by any change of circumstances.

3. Withdrawal and denunciation can be provided for by the express terms of

a treaty, which terms can state how much notice must be given before the

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 withdrawal is effective. Sometimes, as in the case of a military treaty, a right to
withdraw can be implied from the nature of the treaty. The Vienna Convention
provides that the right to withdraw can arise only the circumstances justifying the
termination of the treaty, and the party electing to terminate must give not less than
twelve months notice.”

4. Consequences of termination, withdrawal and denunciation are that a party

has no further obligation to perform under the treaty, but has no duty to undo
anything done while the treaty was still in force

H. DEPOSITARY is usually specified for the treaty, particularly a multi-lateral treaty.

The depositary can be one of the party states, an international organization of its
chief administrative officer. The depository also keeps a chart showing state of
signatures, ratification, entry into force, denunciation, or acts of consent of new
parties, and the text of any reservation. Function of depositary is international in
character and there is a duty to act impartially.

I. REGISTRATION OF TREATIES. Every treated entered into by any member of

the U.N must be registered with the secretariat of the U.N. and published by it.
(Art. 102, U.N charter) These treaties are published in U.N. Treaty series
(U.N.T.S)

STATE TERRITORIAL SOVEREIGNTY

The expression “state territory” refers to an area over which a state exercises a certain type
of authority.

H. PARTS OF TERRITORY - DELIMITATION

There 3 components: LAND, WATER, AIR the last two being ancillary to land.
Thus, internal waters, gulfs, bays and territorial waters are state territory only
because of the surrounding or contiguous land territory
Thus an island which the Geneva Convention on the Territorial Sea and the
Contiguous zone (1958), Art 121, I.C.N.T. defines as
“a naturally formed area of land surrounded by water which is above water
at high tide”
will, if it forms part of the territory of a state, be surrounded by its own territorial
sea, and the air space both above the island and the sea will also fall within state
territory. On the other hand, an artificial structure whether fixed or floating in the
sea will give no right to a surrounding territorial sea or to super adjacent air space.
For example, oil extracting platforms are, by Article 5 of the Geneva Convention

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 on the Continental shelf (Art. 60-8, I.C.N.T) accorded a “safety zone” up to 500
meters. Article 3 states that “such installations do not possess the status of islands…
have no territorial sea of their own” Land is thus the essential ingredient of state
territory.

A. FRONTIERS are the outward limits of a state’s territory land “are normally marked
at ground level, frontiers traversing line (e.g. lake Victoria), those following a river
that is non-navigable follow the middle; if it is navigable the boundary follows the
Talweg or middle of the deepest part. The sea frontier is the outward edge of the
territorial sea. To define the “territorial sea every state must draw “baselines” on a
chart, according to customary procedures, that follow the low-water line along the
coast. Every state has the right to establish the breadth of its territorial sea up to a
limit not exceeding twelve nautical miles measured from the baseline. This twelve
nautical miles limit holds in international law, notwithstanding that recent
conventions provide that party Coastal states are given “sovereign rights” over the
Continental shelf (that is, the sea bed and sub soil) up to 200 nautical miles from
the baselines. Thus if a state asserted its full 12 mile sovereignty over territorial
waters, there would be 188 additional nautical miles over which it has seabed and
subsoil rights. The 200 miles economic zone is some times referred to as a
“frontier” but it is not a territorial frontier. (e.g. Peru alleged fishing zone is
improperly asserted by Peru as a “frontier”. The air frontier is that which rises
vertically in plane from the land and water frontiers. Thus the frontier of a state
territory is not an “imaginary line on the surface of the earth” but a plane rising
vertically into the air and descending to the center of the earth from such an
imaginary line.

1. Frontier zones and traffic. Zones can be only a few meters small with all natural
(trees) or artificial protrusions from the earth cleared, or can be several kilometers
wide that serve as a customs free zone, eg doctors can practice there, in territory
adjacent to their own practice. In such zones, frontier workers traveling daily across
the line may be excused from normal visa formalities, eg under a work permit
system.

B. VOISINAGE. The body, of rules and practices which govern the conduct of
neighbouring states are referred to as relations of voisinage (means neighbour “in
French). The duty to maintain frontier signs in good repair is a general rule of
international law, but, curiously there is no rule requiring a state to erect such signs.
If a river is boundary, each side is required to maintain the bank. No state may
change natural flow in any way to cause damage eg build a dam, canal, irrigation
to reduce flow pollution or air. In Trail Smelter Arbitration (1935) Held, a British
Columbia smelter emitting sulfur dioxide fumes that damage U.S. crops, 7 miles
away, obligates Canada to pay damages, and said:
“No state has the right to make or permit the use of its territory in such a
way as to … cause damage to the territory of another state. if such use has
clearly and convincingly evidenced”

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 Similarly, no state can permit its territory to be used so as to endanger lives of its
neighbour nationals (e.g. a rifle range) Neighbouring states often set up a permanent
bipartite commission to regulate and resolve all boundary questions (eg U.S
Mexico, U.S – Canada boundary international joint commission).

C. SEA-BED AND SUBSOIL, beneath land, internal waters and territorial sea is
included in a state’s territory under the Geneva Convention on the Continental
Shelf, as noted, a state has “Sovereign rights” over sea bed and subsoil of the
continental shelf up to 200 miles. This includes the right of state to tunnel
irrespective of depth of water above the subsoil (U.K – French tunnel in English
Channel).

II TERRITORIAL SOVEREGINTY is the authority a state exercises over its

territory.

A. TERRITORIAL JURISDICTION over a state’s territory (and its 3 parts) is

complete and excluding, extending not only all 3 parts but all persons in or said
parts – regardless of nationality. No other state has the right to exert coercive
jurisdiction within that territory. Thus, an attempt to collect taxes, to arrest, to
marry, sign a register of birth, to make a will – all these act can be carried out within
the territory of another state only with that state’s consent. One consequence of
territorial sovereignty is that a state has no duty to admit a non – national to its
territory. For political reasons it may refuse to admit certain non – national or admit
them subject to visa requirements and passport. A sovereign state may prevent a
national from leaving the territory. Democratic states do not tolerate such a rule,
but many totalitarian states have done it to avoid serious depopulation. Once a
foreign national is admitted the state has a duty to protect him in accordance with
rules of international responsibility. Some states provide “most favoured national”
treatment, or even that of nationals. Bilateral treaty favoured national treatment is
common.

Although governments (particularly African) tend to want to stay in power they

have no right in international law to do so. Hence for a neighbouring state to harbor
rebels and grant them military training facilities with view to ousting the
neighbouring government is not per se contrary to international law (eg Honduras)

III TRANSFER OF TERRITORIAL SOVEREIGNTY. A state exercises over its

territory rights of imperium (governance) and can be transferred to another state.
Thus, jurisdiction over territory as well as the territory itself can be ceded. A state
can by treaty, lease land from another in which the lessor state gives up sovereignty
over territory (eg Cuba, Guatemala Bay).

IV CONCURRENT TERRITORY JURSIDITION AND EXTRA –

TERRITORIALITY

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 1. Concurrent territorial jurisdiction (Condominium) New Hebrides were subject
of condominium between U.K. and France. With military leasing, lessee exercises
jurisdiction over the base and military personnel, the lessor over civilian personnel.

2. Extra – Territoriality under former view, applied to embassies warships.

Never has accurate, because of status of immunity from jurisdiction of host state
admits there is jurisdiction over the territory but asserts immunity. If technically,
the embassy or warship was “territory “of the sending sovereign, you would not
need immunity because the host state wouldn’t have sovereignty over the
“territory” anyway.

III ACQUISITION AND TRANSFER OF STATE TERRITORY Title to territory is

either original or derivative.

A. ORIGINAL TITLE can result form (a) geophysical change, eg accretion

where an island suddenly appears in the coastal waters of a state (eg Hawaii
volcanoes)

B. TITLE by peaceful occupation of formerly unoccupied (terra nullius) land.

Discovery alone is not enough. Historically there was discovery, announcement of
occupation, in name of state, but unless followed up with effective occupation, the
claim of title would remain inchoate. How much occupation constitutes “effective
occupation”? In Eastern Greenland Case (P.C.I.J 1935) it was held that a sparsely
populated coast was sufficient where there was vast unpopulated interior.
Sovereignty brings duties as well as rights: not until state can fulfill its duty of
protection on towards other states and their nationals will the administration of the
claiming state be effective enough to confer title. Artic claims of sovereignty have
been extended by certain states drawing sectors drawn from meridian lines, but
there never has been any common operation in the Antarctic. After 1st Dec. 1959
the legal situation was frozen, all states agreed not to make any new claims, and
agreed not to attach legal signification to their activities after the treaty.

C. DERIVATIVE TITLE can be acquired (or lost) to territory formerly

belonging to another state through cession, secession subjugation or prescription,
or “constitutively”
1. Cession, is transfer from one state to another of sovereignty over a definite
territory. Cession occurs at the moment of effective transfer of authority over a
definite territory to the acquiring state. Concession may by purchase (Alaska – 8m)
(Louisiana 15m) or by exchange as result of treaty of peace following a war. In
essence, cession is a transfer as a result of a voluntary act.

2. Secession occurs which there is a revolt followed by the formation of a new

state. In contrast to cession arising from agreement of 2 states, secession involves
title to the new state’s territory being the result of its own act, and it will also depend
on other states recognizing it as a state.

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 3. Subjugation (or conquest) was a historical method of acquiring title to land.
Article 2(4) of the U.N. charter means subjugation can no longer be considered a
legal method of accruing title to property. Israel’s claim to title to land’s conquered
in the six day war has been expressly repudiated by a U.N. Security Council
resolution.

4. Prescription can confer title by mere passage of time. However, the

imperium (governance) which a state exercises over its territory differs from the
dominium which an owner possesses over his property. State practice evidences
no instance of acquisition of title to territory by prescription, which requires de
facto exercise of sovereignty over a portion of territory under the bona fide but
mistaken belief that it was part of the territory. This implies a total absence of
effective exercise of authority by the state to which it actually belongs. In Palmas
Island Arbitration, it was strongly suggested that just as effective occupation may
create a title of sovereignty so subsequent ineffectiveness may deprive the state of
that tile.

5. “Constitutive” title to territory as the result of the creation of a new state,

comes about where several states by treaty create a new state out of territory of one
or more of their number (eg Treaty of London, 183 created Belgium). Its territory
is constitutive, that is, title is to be found in the same legal act that created the state.
It is not cession because there was previously no existing state to which the land
could be transferred, not secession because the new state did not owe its existence
to its own efforts. Former Colombia territories which obtained independence
through peaceful evolution acquired territory halfway between constitutive mode
and simple cession.
STATE RESPONSIBILITY
I. GENERAL

A. Nature of international responsibility. Whenever the breach of any

obligation under international law causes damage, the party committing the
wrongful act becomes liable to as “responsible” to the party injured. Thus there are
elements to international responsibility: (1) an illegal act (2) proximately causing
(3) damage (or injury).

1. Ex contractu – ex delictu; responsibility. The concept of international

responsibility is sui generi. It is not directly analogous to municipal (internal
national) law contractual or delictu liability. Thus in Russian Indemnity case
(1912) the court rejected any motion of difference between ex contractu and ex
delictu liability and said:
“all liability whatever may be its origin is finally estimated in money terms
and transferred into obligations to pay … it is not possible for Tribunal to
perceive essential differences between various responsibilities”.

“Fault” or culpa is not essential element of the idea of international responsibility.

In the Jessie Mixed claims Commission U.K. and U.S American naval officers

77
 interfered with sealing operations of British vessels, in a bon fide belief that action
was justified by joint regulations of U.K. and U.S. Held: was liable regardless of
good faith belief.

2. Civil and criminal responsibility. International responsibility is civil rather

than criminal. Although the criminal responsibility of individuals is clearly
established in international law, no case has occurred of the condemnation of an
international person for an international crime. (Note trials involve national person
[eg S.S. agents] in crimes against humanity – not nations). Neither is there any case
on record, where exemplary, that is punitive, damages awarded by a tribunal as a
means of punishment for the gravity of the act.

B. The consequence of responsibility. It is a principle of international law that any

breach of an engagement involves an obligation to make reparation (Charzow
Factory (Case, P.C.I.J. 1928). It follows from the establishment of responsibility
that compensation is due. (Corfu channel compensation case, I.C.J.1949).

C. The illegal act. International responsibility can only arise as the result of the breach
of an international obligation that arises from treaty, customary international law or
general principles of law. The compulsory jurisdiction of the International Court
of Justice extends to all legal disputes concerning.
“the existence of any fact, which, if established would constitute, a breach
of an international obligation… [and] the nature and extend of the
reparation to be made for such breach (Statute of the International Court
of Justice, Article 38)

1. Omissions. Failure of responsible entity to act when it should have is treated

as the same under international law as misfeasance or affirmative negligence. Thus,
in the Corfu Channel case (supra) Albania’s responsibility was the result of an
omission (failure to inform shipping of the existence of a mine field in her territorial
waters) Held: it was responsible for sinking of British warships.

2. Municipal Law is no defence to an act breaching international law. In the

Alabama Arbitration Case (1872) The U.K constructed a vessel in British port to
order of Confederate South and permitted it to sail in breach of U.K neutrality. U.K
would have preferred to prevent sailing but had no power to do so under municipal
law. Held: it is not a defence. England was held liable for damages by the Alabama
to the Northern Union Army.

D. Damage. There is no responsibility unless the breach of the international obligation

results in damage. It appears from case law that all illegal acts give rise to some
damage. Once there is an illegal act or omission, an international person is entitled
to reparation for any kind of damage material, moral, to itself [the state] or to those
it must protect or those claiming through them. If damage is incurred but there is
no breach of an international obligation (e.g. rebels causing damage in a civil war)
the doctrine of damnum sine injuria applies. In Home Missionary Society Case

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 (1920) the imposition of an unpopular tax caused a riot resulting in slaughter of
many white missionaries. Held: U.S. claim for death of American Missionaries
denied, where government was not guilty of lack of foresight in predicting riot or
lack of due diligence in trying to suppress it

II STATE RESPONSIBILITY

A. ELEMENTS OF STATE RESPONSIBILITY. (1) Illegal act (2) causing

damage we must add that the illegal act must be imputable to the defendant state,
and damage must have sustained by claimant state.

B. FORMS OF STATE RESPONSIBILTY. Since illegal act can be either

directly – indirectly illegal and claimant state can be injured directly or indirectly
(e.g. its nationals) the following types of responsibility can arise: [Note first party
is wrongdoer, 2nd party mentioned is victim]

1. Direct – Direct claim, e.g. agents of defendant damage property of the plaintiff
state. Thus in the Arbitration between Portugal and Germany (1930) Germany
troops attacked Portuguese territory prior to Portugal’s entry into World War I
(Mozambique) Portugal recovered damages to roads, fortifications, beasts of
burden.

2. Direct – indirect claim eg agents of defendant state injure nationals of the

plaintiff state e.g. in De falcon case (U.S. Mixed Commission) Mexican soldier shot
American bathing in Rio Grande (thought he was a smuggler). Held: damages were
awarded against Mexico

3. Indirect – direct claim, eg private individuals of defendant state cause damage

to claimant states agents or property, eg a rebellious mob attacks foreign embassy
and burn it to ground.

4. Indirect – indirect claim where private individuals of defendant state, injure

nationals of claimant state. In Janes’ claim (US Mexico Claims Commission1926)
Janes, a US citizen was shot dead by K, a Mexican, in front of many witnesses.
Police did nothing although K, it was known, was only 6 miles away. Only when
Janes’ employer offered a reward did the police act, but never apprehended the
killer. Damages were awarded against Mexico.

C. IMPUTABILITY of state (since by itself, it can not act) is established through acts
of it’s organs, officials, agents. Two tests apply (1) Can act of organ, official, or
agent be considered in the circumstances as if they were acts of the state? and (2)
would this act be illegal in international law if it had been committed by by the
state? The first question relates to imputability and the second to state
responsibility.

1. Acts of state agents – the rules are different from those of municipal law

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 (a) The act of an agent may be imputed to the state even though it is ultra vires. In
Youman’s claim (US Mexican claims Commission 1926) he was in a Mexican riot.
The mayor summoned militia to disperse the mob, joined with them and Youman
and other Americans were killed. Held; this unauthorized militia action was
imputed to Mexico which was liable in damages.
(b) Acts of legislature (parliament) in all cases, are attributable to the state even
thought there is a constitutional disability.
(c)Judicial acts (where the judge is within apparent scope of his authority) are the
acts of the state.
(d) Acts of the executive or government are always imputable to state, as are acts
of ministers relative to their own ministries. An act is also imputable to the state
whenever the state ratifies unauthorized acts of agents of nationals.

2. Act: of private individuals are not imputable to the state which is never directly
responsible for such acts. However, the omission of state officials to react to, eg
riot of private individuals can then involve state liability, if there is a duty to act.
(a) state has special duty to protect embassy, foreign agents, hence where mob burns
embassy, omission to stop it involves liability (b) Janes claim Mexico was liable
for failure to apprehend the murderer. (c) In Zifra (1925) there was naval looting
ashore. Held: the state owning the vessel was liable because the circumstances were
such that the captain sending unsupervised men could foresee looting.

3. Acts of revolutions and insurgents maybe distinguished from mob acts by

referring to the reason or object of violence only when it is directed overthrow of
the existing government will the actors qualify as revolutionaries or insurgents.
Obviously, acts aimed at the destruction of a government cannot be imputed to the
state while it is internationally represented by that government. Hence, damage
caused by insurgent bands does not involve the responsibility of the state unless
and until the government is over thrown, but should it replaced by the insurgents
their acts are retroactively imputed to the state, which thereupon becomes
responsible for the damage caused.

D. “DIRECT DAMAGE” TO STATE PROPERTY cases are few, partly because

claimant states own little property (only embassy, typically) and if damaged, the
claim is settled amicably against defendant state. Only where defendant state
knowingly permits private parties to destroy property, e.g. embassy, is defendant
liable, and then for failure to act (omission). In Corfu Case (ICJ 1948) the court
considered that Albania must have known Germany laid mines in its territorial
waters and failure to advise British resulted in damages against Albania for seamen
killed when UK destroyer blew.

E. NON-MATERIAL DAMAGE TO THE STATE was found in Corfu with respect

of Albania’s claim that British entry into her territorial waters violated her
sovereignty. Held: It may have violated sovereignty, but Albania suffered no
damage.

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F. INJURY TO A STATES’ NATIONALS ABROAD OR “INDRECT DAMAGE”
constitutes the vast majority of claims before international tribunals.

1. Damage suffered by the state. The state exerts over is subject abroad a right of
‘personal jurisdiction. Hence, any lack of respect to, or improper treatment of a
subject aboard by a foreign state is a violation of the personal sovereignty of the
claimant state. Thus, by taking up the case of one of its subject, a state is in reality
asserting its right to ensure for its subjects, respect for international law,
(Mavromattes Palestine Concession Case (P.C.I.J. 1924).

2. Damages suffered by the individual are included in a state’s claim filed on behalf
of its nationals abroad, including non-material as well as material damage. Eg. In
Janes claim, an award against Mexico was made on behalf of widow, children,
including consideration of their grief over the loss, indignity suffered by non-
punishment of culprit.

G. In cases INVOLVING BOTH DIRECT AND INDIRECT DAMAGE, the rule is

that the court is obliged to consider and adjudicate only the preponderant claim.

H. ACTS INVOLVING THE RESPONSIBILITY OF THE STATE

1. Duty of protection. Territorial sovereignty carries right to exclusively display
activities of the state and the corollary duty to protect within the territory the rights
of other states and the rights of their nationals. Government has a duty to make
territory safe for foreign nationals arising out of international law.

2. Acts directly and indirectly illegal distinguished. An act in breach of treaty

obligations which injures a foreign national is a directly illegal act of defendant
state; or a law which discriminates against aliens. However, in most cases
involving foreign nationals the claimant state complains that municipal law is fails
to comply with the international obligations of the state.

2. The international minimum standards. Every state under international law,

is under a duty to protect the lives, liberty, and property of the nationals of every
other state, this can also be described as a universal minimum national (municipal)
law standard. The standard requires enforcement -- effective protection.
International law – not municipal law defines what is effective, and if a state is not
providing effective protection it is breaching an international law duty. The
argument that foreigners are entitled to no better treatment than nationals is
misconceived.

3. Discriminatory acts are always illegal. Any act of state which discriminates
against aliens and which causes damage is contrary to international law. To deprive
an Asian living in African state his license to trade is illegal in international law.

L. FACTORS EXCLUSING RESPONSIBILITY

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 1. Self defense of a state using force against an illegal use of armed force.

2. U.N sanctions are authorized by the UN charter as preventative or enforcement

measures against states violating provisions of the charter. There is no U.N.
responsibility for resulting loss or damage.

3. Reprisals by a state after redress of wrong has been demanded and refused,
proportionate to the loss suffered by the injured state, do not involve responsibility
for the damage caused by such reprisal. Ordinarily, a reprisal is one, which in other
circumstances should be unlawful, but which is justified in the particular
circumstances as necessary to ensure respect by the delinquent state for the rule of
international law that it has violated.

4. Necessity compelling state action, to avert grave or imminent danger, if it

injures another state, is sometimes claimed to relieve the actor state from
responsibility. Theory was rejected in Corfu Channel (ICJ 1949). However,
necessity for humanitarian reasons may justify an otherwise illegal act. In the
Neptune (1797) foreign ship carrying food was detained and food distributed to
relieve a famine. Held: no responsibility other than to pay just compensation for
the food.

5. Force majeure. As a general principle of law, a state cannot incur

responsibility for damage occurring independently of its will.

M. REPARATION

1. Nature and extend of reparation. So far as possible, it must wipe out all the
consequences of the illegal act and reestablish the situation that existed as if the act
had not been committed “Charzow factory PCIJ, 1928.

2. Restitution (restitution in integrum) is designed to re-establish situation if

the damaging act had not taken place. It is the normal form of reparation, indemnity
in money only takes place if restitution is not possible, eg. In a federal government,
the central government may not be able to revoke an illegal act of one of the Federal
states; or the damage may be result of a judicial decision which cannot be revoked.
Examples of restitution: the redistribution of unlawfully collected taxes and
annulment of obligations arising out of court decisions.

3. Indemnity is compensation measured in money terms, is equivalent to the costs

of restitution. May consist of;
a) Replacement cost at time of decision (Charzow Factory, PCIJ)
b) Indirect damages in chain of causality with illegal act, unless conduct of victim,
exacerbated damage (Art between Portugal and Germany 1930)
c) Lost profits as they would be possible in the normal development of the
undertaking. (Measure was used Charzow)

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 d) Payment of interest - damages whether as compensation for loss of use of the
sum during period within which payment was withheld or for the injury suffered
by the creditor (Russian Indemnity Case 1942)

4. Satisfaction is a form of reparation appropriate only in cases on non-material

damage or moral injury to the state. In modern times, presentation of official
regrets, punishment of guilty officials and the formal acknowledgment of the
unlawful character of the act, are the usual forms of satisfaction. In Corfu Channel
Case (I.C.J. 1948) the court responded to Albania’s protest that the British Navy
entered her territorial waters in violation of her sovereignty by agreeing that it was
violated and said;
“This declaration is in accordance with the request made by Albania
through her counsel and is in itself appropriate satisfaction”.

N. PROCEDURE

1. The International claim procedure differs depending on whether claimant

suffered damage directly or indirectly. If damage is direct, eg an agent of state or
its property is injured the claim is served immediately through the diplomatic
channel on the delinquent state. Where damage is indirect e.g. to a national,
preliminary conditions need to be fulfilled.

2. The rule of nationality of claims holds that bare nationality is not enough – there
must be a genuine link, a “real and effective” nationality so as to connect the
injured individual to the state. The rule is subject to exceptions and qualifications.

3. Qualifications to the rule of nationality of claims. The requirement of more than

bare nationality or a “genuine link” applies to all persons who acquired nationality
by naturalization, since it can be obtained for genuine or improper motives.
Genuine motive would be feeling state is fatherland, or that it is the state with which
a person has had the closest connection intimately. In Nottebohm (I.C.J.) the court
said;
“the habitual residence of the individual the center of his interest, his
participation in public life, attachment shown to a certain country and
inculcated in his children”
were evidence and signs that the motive for seeking naturalization was genuine.
However, naturalization acquired by birth, according to principle of jus soli or jus
sanguinis is sufficient to support a states claim of injury to a national. In rare cases,
something short of nationality has been sufficient. In Koszta case (1953) The
Austrian government, acquiesced to a U.S. claim on behalf of a Magyar rebel leader
who was only a “declarant alien” who had filed only a preliminary notice of
intention to apply for naturalization in the U.S. To protect a national, a state must
prove the point that he is one.

4. Exceptions to the rule of nationality of claims. (1) A state may not protect a
national against another state of which he is also a national. (2) The nationality of

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 a merchant vessel gives state of nationality power to protect the interests of the
owners of the ship and cargo regardless of their nationality. (The Wimbledon, PCIJ
1923). The “genuine link” doctrine applied to corporations requires that the state
seeking to protect its corporate national provided a substantial shareholding is also
held by nationals (individuals) of the same country. In such cases, once this
“genuine link” has been established, the sate can proceed to also protect the non-
nationals who own stock in the corporation

The person on whose behalf the state is intervening must have possessed that
nationality from the time of injury until the moment of judgment. Where the
individual is national of a state at time of injury, but of B at time of instituting
proceedings, state practice permits and pursues claims jointly presented by states A
and B.

5. Exhaustion of local remedies is required before nationals of state A can, through

state A, proceed against delinquent state. A “local” remedy is one available where
the injury is committed, available under municipal (national) law. “Exhausted”
means a failed claim before a lower national court must be appealed to a higher
court. Petition for clemency must be tried, if there is a “reasonable hope” of
success. Any remedy whatsoever, whether ordinary or extra ordinary must be tried
and exhausted before a successful international claim can be made. The rationale
is that the alleged wrongdoing state must first be given a chance to right the wrong
before resort is had to the international judicial process.

6. Extent of local remedies rule is limited to situations where injured nationals

have an indirect claim through their state against the delinquent state. Where the
claimant states agents or property is damaged. Where the claimant states agents or
property are damaged, the claimant state is not required to exhaust local remedies.
For “local remedy” rule to apply, there must be a “local remedy”. Thus where
Bulgaria shot down a civilian Israel plane which crashed in Bulgaria would not
involve the need for the victims to sue in Bulgaria courts before Israel could
proceed to file international claim on their behalf (Israel V Bulgaria ICJ 1959).

III RESPONSIBILITY OF INTERNATIONAL ORGNIZATIONS

A. The capacity of an international organization to present a claim exists provides

it has an international personality and is capable of possessing international rights
and duties. This capacity can be exercised wherever and whenever necessitated by
the discharge of its functions. Although the rule in respect of international
organizations other than U.N is not clear, it is well established that the U.N. may
pursue claims against non member states. Thus, in Reparations for injuries suffered
in the service of U.N. (I.C.J. 49) Held: UN could pursue claim against Israel before
it had become a member arising from terrorists killing certain U.N. Peace Keeping
Force staff.

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 B. Claims against international organisations are unclear – little precedent. It would
seem that the state of a national employed by U.N. could present a claim for
wrongful dismissal, provided the employee first exhausted his remedy before the
U.N’s personnel Tribunal. In Effects of Awards Made by U.N. Ad Tribunal (I.C.J.
1954) Held: The General Assembly as an organ of U.N. was obliged to pay the
awards arising form unjust dismissal.

C. Nature of protection afforded by an international organization. Like a state, an

International organization can present claim for an injury which it suffers. But it
can present claim also for an injury caused to its officials or persons claiming
through them. The rationale for rules it provides functional protection. This differs
from diplomatic protection. It depends on the functional link between victim and
International organization not upon a link of nationality. In such cases, both the
direct claim of international organization against delinquent state (e.g. claim for
injury to an employee) and claim of his state of nationality could be filed, but it is
doubtful that double damages would be awarded. The claim of state of nationality
would have to overcome defence that victim was not admitted into territory of
delinquent state in his capacity as a private national of claimant state, but rather as
an official of an international organization. The measure of damage rules in
international organization cases would be the same as in state claims.
PACIFIC SETTLMENT OF DISPUTES

Force and reason are the only two methods of settling disputes. The progress of a legal
system can be measured by the extend that reason is substituted for force. “Pacific”
settlement of disputes has been a constant concern of international law and International
Organisations. Before “war” was outlawed (in Pact of Paris), or Kellog – Briand Pact
1928) and before article 2(4) of U.N. Charter requires all members “to refrain from the
threat or use of force” in their international relations, states always had choice of settling
disputes peacefully or through force.

Today article 32 of the UN Charter sets out a new rule that the parties to any dispute, the
continuance of which is likely to endanger international peace and security must first of all
seek a solution by peaceful means, and failing that, Art 37 requires they refer it to security
council which under Art 36, can recommend appropriate procedures for settlement, or take
peacekeeping action. This rule applies to “all parties to dispute” whether members or non
members. Art 2(6) requires U.N. to ensure that non-members comply with above
principles.

Under article 35(1) any member party to dispute or not, can bring a dispute to the attention
of the Security Council. Non-members can bring to attention of Security Council and
dispute to which it is a party, provided it accepts in advance the obligation of pacific
settlement (article 35-2). Hence 2 categories of dispute: (1) those likely to endanger
international peace and security, and (2) those whose continuance is not.

I. INTERNATIONAL DISPUTES

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A. SITUATIONS OF DISPUTES. Situations may lead to international friction or a
dispute (Article 34). These situations are distinguishable. Some disputes are within the
domain of international law and some are not. In Mavromattes Palestine Concessions Case
(P.C.I.J 1924), M claimed U.K the mandatory for Palestine wrongfully interfered with a
commercial concession he held in Palestine. The U.K. challenged the jurisdiction of the
PCIJ when Greece asserted M’s claim, urging that PCIJ jurisdiction was only over disputes
between two states. Held:
“It is true that at first the dispute was between a private person and a state…
Subsequently, the Greek government took up the case. The dispute then
entered a new phase; it entered the domain of international law and become
a dispute between two states” (The PCIJ therefore had jurisdiction).
The case illustrates the difference between disputes which are within the domain of
international law and those that are not

B. POLITICAL AND LEGAL DISPUTES may involve political or legal reasoning.

There is no real distinction between political and legal disputes; one is transformed into the
other when the parties (one or both) abandon diplomacy. A dispute easily settled by “legal”
means may remain “political” because one or both parties refuse arbitration or judicial
settlement. Since international law is concerned with peaceful settlement, it contains
procedure for settling any dispute at any time whether “legal” or “political”.

II DIPLOMATIC SETTLEMENT

A. NEGOTIATIONS are the most direct simple method to settle disputes. Unlike all
other diplomatic modes of settlement, no third party is involved. In practice, only
disputes that cannot be settled with direct negotiations are to be submitted to
judicial settlement. In case of disputes likely to endanger peace, the parties under
article 33 of the UN Charter have a duty to attempt settlement by negotiation.

B. GOOD OFFICES AND MEDIATION unlike negotiations involves 3rd party which
may be a state, group of states, or if permitted by treaty, a private citizen.

1. Good offices are offered by 3rd party to induce disputants to negotiate, often on
a non-public basis. It is probable that France initiated secretly, negotiations
between U.S and North Vietnam to end the Vietnam War. In 1906 U.S president
(Teddy Roosevelt) opened negotiations between Japan and Russia to end the 1904
war.

2. Meditation involves 3rd party participating in negotiations, attempting to narrow

differences until agreements is reached or until one or both parties declares, his
proposed settlement is unacceptable or he realizes it himself. Mediator can be
individual or state. Arab states and Israel have on several occasions settled disputes
by mediation. The Hague Convention of 1894 amended 1907 sets out much of the
law of international mediation.

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C. ENQUIRY. Parties under the Hague Convention (1899, amended 1907) in case of
disputes involving neither the honor or vital interests of the parties, and which
arose out of factual disputes, may institute an international commission of inquiry
to develop facts through impartial and conscientious investigation. Under article 9
the Commission is to be set up by special agreement between the parties. The 1907
text has 25 procedural articles. In Dagger Bank Incident (1904) Russian navy fired
on Japanese Fishing boat believing them to be torpedo boats (during Japanese –
Russian war). The report of an International Enquiry Commission facilitated
settlement.

D. CONCILIATION. The law is mostly set out in “Pacific Settlement of International

disputes” (General Act) signed in Geneva 1928. Article 15 reads
“the task of the Conciliation Commission shall be to elucidate the questions
in dispute, to correct … all necessary information by means of inquiry or
otherwise and to endeavor to bring the parties to an agreement.
As of January 1, 1981 22 states had signed the treaty. It handles (a) disputes of
facts arising by signing treaty, (b) matters solely within domestic (national)
jurisdiction of states under principles of international law (c) specifically exempted
topics, eg territorial disputes. It has a 5 person council commission, private
proceedings, unless stipulated to be public; final report summarizing agreement of
findings that parties were unable to agree. Conciliation is impartial, discrete, rapid
and informal. The Security Council and General Assembly both have powers to
constitute a Conciliation Commission. Resolution 267-3(1948) established
permanent panel of person considered suitable as members of Enquiry, or
Conciliation Commission.

III JUDCIAL SETTLEMENT

A. ARBITRATION differs from conciliation, mediation, and enquiry in that

the “award” is binding on the parties, and has the force of res judicata. In this
respect it resembles judicial settlement. Arbitration differs from it, in that parties to
Arbitration can select the members of tribunal, define the dispute, stipulate to legal
procedures and rules that will be applied. A party may withdraw from arbitration at
any stage unless prohibited by treaty

1. Arbitration tribunals perform a judicial function. Rules of natural justice apply

(a) both parties have time to prepare, (b) opportunity to present it, (c) an impartial
arbitrator [Art 37, Hague Convention] who must decide on the basis of respect for
the judicial nature of he arbitral process. Arbitrator is in the role of a judge; hence
panel is called “tribunal” vis a vis “commission” used in mediation or enquiry. The
tribunal may be a sole arbitrator (eg. Judge Huber, in Palmas Island Arbitration
1928 one of most celebrated decision in international law). There is also a mixed
commission (e.g. U.K. – US arbitrations under Jay’s Treaty) or collegiate body,
with parties naming some members, and friendly states nominating others (e.g. the
Alabama Arbitration of 1872 – probably the most important arbitration ever to take
place).

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2. Obligation to go to arbitration cannot be compelled, neither to mediation, nor
any other kind of pacific settlement (Eastern Carelia Case – P.C.I.J. 1923)
However, a state may undertake to submit to arbitration by treaty, dealing with
existing or a future disputes, specific types of cases, or general category

3. Compromise is a special agreement between states to submit existing dispute to

arbitration. Most bilateral treaties settle future disputes by arbitration. They
condition such obligation upon entering into a compromise concerning the
specified disputed that arises, so that they can fashion issues and procedure at the
time.

4. Law to be applied is that which Tribunal is instructed to apply in the compromise

if none, then to apply pubic international law.

5. Arbitral procedures. Hague rules provide that the procedure is set out in the
compromise. If not specified, follow rules of any judicial proceeding except that
proceedings are in private. Decisions are by a majority of the members.

6. The award decides the issue “finally and without appeal “It is binding on
the parties to the dispute, but no one else

A. ARBITRATION

7. Revision of award can be demanded, if provided for in compromise Article. 83,

Hague Convention No. 1 provides:
“the parties can reserve in the compromise the right to demand the revision
of the award. In this case, and unless, there be a stipulation to the contrary,
the demand must be addressed to the tribunal which pronounced the award.
It can only be made on the ground of the discovery of some new fact
calculated to exercise a decisive influence upon the award and which was
unknown to the tribunal and to the party which demanded the revision at
the time the discussion was closed” [Article 83, 1907 text]

In Schrock case (U.S Mexico Mixed Claims Commission 1874) the umpire acted
on mistaken belief that Mexico nationality law was based on jus soli. Since this
question of municipal law is treated in international law as a question of fact: Held:
The award could properly be revised after rehearing by the umpire.

8. Nullity of award can occur when the three assumptions or any of them,
concerning finality of awards are not present:
a) The instructions in compromise are carried out;
b) Arbitrators properly exercise judicial functions;
c) Award gives reasons on which it is based

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Thus, an unreasoned award, one where fraud, corruption or partiality is proved
against an umpire or one of arbitrators; or one which decides an issue not raised,
can all be set aside. In Orinoco S.S Co. case (U.S – Venezuela Mixed claims
commission 1903) umpire B decided a claim by U.S against Venezuela granting
28,000 out of 1.4 million claimed. In 1909, a treaty called for arbitration whether
the 1903 decision of B was void. The new tribunal decided that the umpire had
exceeded his jurisdiction by ignoring express provisions in the compromise
mandating the manner in which he was to decide the issues and the “absolute
equity” standard that was to be applied.

9. Suitability of arbitration for settlement of disputes already arising in established

by longstanding experience. Obligations regarding future disputes are best
resolved by judicial settlement. Both the earliest and most recent arbitrations
involved claims based on facts and events which had already taken place. Since
P.C.I.J. was established in 1932, attempts to provide for future arbitration of
disputes have ceased to operate since the court, and later ICJ came into being.
Nevertheless the language of Hague Convention in respect of arbitrations of future
issues is as follows;

1. Permanent Court of Arbitration (P.C.A) setup in peace conference of 1899 –

panel of person each party naming 4. Each party choose 2, the 4 then chose a fifth.
Permanent bureau was established at Hague. First award 1902, last 1932

2. The Hague Convention No. 1 (1899, 1907); part IV is devoted to

international arbitration 2 chapters.
“The object of international arbitration is the settlement of disputes
between states by judges of their choice and on the basis of respect for law…
Recourse to arbitration implies the undertaking to submit in good faith to
the award”

3. The General Act (1928), a convention with rules applicable to arbitration

and judicial settlement distinguished between “respective rights of parties” disputes
which can be subject to rules calling for application of legal principles, and
“respective interests of parties” disputes, which can’t follow rules instructing
arbitrators to apply” legal principles” since there are no applicable legal principles
where there are no rights. So on parties disputes concerning their “respective
interests” the rules instruct arbitrators to decide cases ex aequo et bono. However,
these provisions have never been acted upon.

B. JUDICIAL SETTLMENT differs from arbitration in 2 ways (1) it requires

submission of dispute to an existing court of justice and (2) it requires application
to the dispute of international law, but not always, as article 38 of Statute of
International court of Justice presents conflicting alternatives:
Part 1 says: “The court whose function it is to decide in accordance with
international law such disputes as are submitted to it’

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But Part 2 says “This provision [Part 1] shall not prejudice the power of the court
to decide a case ex aequo et bono, if the parties agree thereto”
While the court thus appears to have the power to decide disputes on the basis of
either set of principle to date, then have been no cases decided on basis of aequo et
bono.

1. Establishment of International Court of Justice. The Permanent Court of

International Justice was set up by Assembly of League of Nation in 1920. Statute
became binding only on members who signed the statute of December 16 1920.
Court was dissolved in April 1946 and the International Court of Justice was
established as one of 6 principle organs of U.N. and is the “principle judicial organ”.
Article 92 of U.N. Charter incorporates the statute of the court by reference. See
93(1). Therefore, ipso facto, all U.N. members are parties to the statute, and non –
members may become parties to the statute of I.C.J. by accepting the obligation of
articles 94, 91 of which requires such non-members to give an undertaking to
comply with the decision of the I.C.J.; and part 2 which provides if there is non-
compliance, the prevailing party may apply to the “Security Council”

2. Access to I.C.J. is available only to states (Art 34 – 2 of the statute) that are
parties to the statute.

3. Jurisdiction is only over “cases which the parties refer to it and all matters’
specifically provided for in treaties and convention in force,” (Articles 36-1),
which, by article 37 is to include treaties and conventions conferring jurisdiction
on the former P.C.I.J. However, irrespective of above by separate declarations
states recognize (and without any special agreement) in relation to any other state
accepting the same obligation, the jurisdiction of courts in following legal disputes:
a) interpretation of a treaty
b) any question of international law
c) the existence of any fact, which if true, would constitute a breach of an
international obligation
d) the nature and extent of reparations to be made for the breach of an international
obligation.
Acceptance of above “Optional Clause” by a state is on the basis of complete
reciprocity. Where state A accepts Optional Clause with reservations, state B can
enforce the reservations against A.

4 Compulsory jurisdiction is conferred on I.C.J by a state (usually all members)

which executes the separate declaration referred to in part 2 above. However, most
states in signing and submitting the declaration to the I.C.J. have hedged it around
with reservations, eg the US infamous “Commonly reservation a party of US
current declaration which exclude
“disputes with regard to matters which are essentially within the domestic
jurisdiction of the Unites States of America as determined by the states of
America.”

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5. Advisory opinion requested by the Security Council or General Assembly are
to be given by I.C.J. at any time on any legal question” (Art 96-1 of charter); or
requested by other U.N. organs with authorization of General Assembly (Art 96)

6. Power to decide whether it has jurisdiction is conferred on I.C.J by Art 36(6)

of STATUTE of I.C.J in event of a dispute as to whether I.C.J has jurisdiction.
“This provision is probably the most important part of the jurisdiction of the I.C.J.
Most cases coming before I.C.J involve arguments by one or both parties that the
I.C.J decisions establish that:
a) The court will only assume jurisdiction once it is convinced that the parties
consent thereto;
b) It is sufficient if this consent was established at time of commencement of
proceedings, although it may also be established by conduct of the parties
thereafter;
c) The court will assume jurisdiction over respondent only where courts
competence arose (i) before (ii) at time of or (iii) after the submission of the
case to the court, discussion below as follows;

i) Competence established before submission of case to I.C.J arises where

respondent state enter a treaty obligation with applicant agreeing to submit
certain disputes to I.C.J, or its predecessor, the P.C.I.J. and dispute is one of
such.

ii) Competence established at time of submission of case to I.C.J occurs when

parties agree to submit to I.C.J a dispute by the terms of a special agreement or
compromise

iii) Competence established after submission of case to I.C.J (forum progatum)

where there is implied consent to the I.C.J’s jurisdiction arising from conduct
of the parties, eg where applicant pleads a charge, respondent pleads an answer
to it, and only later raises the argument of lack of jurisdiction.

Interestingly, one case where this occurred was in the Corfu channel
(preliminary objection) case I.C.J 1949, respondent Albania, after implied
consent has refused to pay the adverse judgment against it for failure to warn a
friendly British destroyer that sunk in their harbour had been mined.

7. Procedures before court differ from arbitration procedure where the parties
can withdraw at any time before the award. Whereas in judicial procedure, the
parties are subject to the power of the court until it has given final judgment.
Generally hearings before I.C.J are public whereas arbitration hearings are private.
The procedure in both cases is contradictoire (the evidence of one party is given in
the presence of the other party) who has the right to contradict it. Although the
“decision of the I.C.J has no binding force except between the parties and in respect
of that particular case” (article 59 of the statute of the I.C.J), the decisions of he

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I.C.J have shown an admirable consistency with its own precedents as well as with
the decisions of the P.C.I.J. The present I.C.J is truly a world court.

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