TOPIC II: STATES AND

INTERNATIONAL LAW

By I.L.MGETA
Introduction

 States are the main subjects of International Law.

 States however derive their legitimacy and respect from
their sovereignty.
 Sovereignty expresses internally the supremacy of the
governmental institutions and externally the supremacy of
the state as a legal person
 Sovereignty cannot exist without existence of a well
defined territory.
 The principle of respect for the territorial integrity of states
is well founded as one of the linchpins of international
system
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 There is a universal prohibition norm that bars

interference in the internal affairs of other states.
 This is reflected in;
– Article 2(4) and 2(7) of the UN Charter
– The 1970 Declaration on Principles of International Law
adopted by the UN General Assembly resolution 2625 (xxv)
– Article of the 1974 Consensus Definitions of Aggression
adopted by the General Assembly, resolution 3314 (xxix)
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 The change in territorial ownership in one state is

not of the same effect with the transfer of land
ownership within a state.
 Territorial change affects the sovereignty of the
state, nationality of its inhabitants, its legal system,
work and related relations.
 Hence International Law does not concern itself
with only territorial acquisition or loss of territory, but
other factors that may affect territorial sovereignty.
Territorial sovereignty

 Judge Huber in the case of Island of Palmas 2

IRAA, pp 829, 838 [1928] stated that;
– Sovereignty in relation to a portion of the surface of the
globe is the legal condition necessary for the inclusion
of such portion in the territory of any particular state.
 Territorial sovereignty entails;
– The exclusivity of the competence of the state
regarding its own territory
– The obligation to protect the rights of other states
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 The essence of territorial sovereignty is contained

in the notion of title.
 This is the term that relates to both the factual and
legal conditions under which territory is deemed to
belong to one particular authority or another.
 It refers to the existence of those facts required
under international law to entail the legal
consequences of a change in the juridical status of
a particular territory.
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 Disputes as to territory in international law

may be divided into various categories;
– Dispute over the status of the country itself
– Dispute over a certain area on the borders of two
or more states
– Disputes that are based on traditional method of
occupation, self-determination, geographical
contiguity, historical demands and economic
elements
Acquisition of a Territory

 There is no common or laid down universal

rule on how a new state can be established.
 It is primarily depending on the concept of
recognition and the capacity of the new entity
to exercise its domestic jurisdiction.
 However, most of states came into existence
by gaining their independence from other
states.
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 There are two methods by which a new entity may gain its
independence;
– By Constitutional means
– By Non-Constitutional Means
 Constitutional means refers to the agreement with the
former controlling administration in an orderly devolution of
power.
– In this, the transfer of sovereignty passes from one power to
another and the title to the territory will accordingly pass from
the previous sovereign to the new administration in a
conscious act of transference.
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 Non-constitutional means occurs where there is a

situation where the new entity gains its
independence contrary to the wishes of the
previous authority by secession or revolution.
– The newly established state may conclude an agreement
with the dispossessed state to recognize the former.
– Other states may recognize this newly established state
in terms of its criteria of statehood that is, population,
territory and government.
Acquisition of additional territory

 Upon being established, an entity may acquire

additional territory in various ways such as;
– Through boundary treaties and boundary awards
 Many boundary disputes revolve around the question of
treaty interpretation.
 It is a rule that a treaty has to be interpreted in good faith,
in accordance with the ordinary meaning to be given to its
terms in their context and in the light of its object and
purpose.-Article 31 and 32 of the Vienna Convention on
the Law of Treaties, 1969.
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 In this process the common will of the parties is

ascertained including consideration of the subsequent
conduct of the parties-see the case of Argentina/Chile
Frontier Award (La Palena) 38 ILR, pp. 10, 89
 The Vienna Convention applies even to treaties which
were concluded prior to its coming into force since it has
been commonly established that such kind of boundary
interpretation represents a customary international law-
see Libya/Chad, ICJ Reports, 1994 pp.6, 21-22; the
Botswana/Namibia Case, ICJ Reports, 1999, pp. 1045,
1059-60
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– Through accretion
 This describes the geographical process by which new land is
formed and becomes attached to existing land. For example the
creation of islands in a river mouth or the change in the direction of
a boundary river leaving dry land where it had formerly flowed.
 Where the new land comes into being within the territory of a state,
it forms part of the territory of the state. In 1968 an under-sea
volcano erupted in the Pacific within the territorial sea of the
Japanese island of Iwo Jima. It was recognized to belong to Japan.
 If for instance there is a gradual shift of the river (imperceptible and
slight move) the boundary may change following the course of the
river.
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 If however, the change is violent shift (avulsion) the boundary

stays at the same point along the original river bed.
– Through cession
 This involves the peaceful transfer of territory from one
sovereign to another (with intention that sovereignty should
pass) and has often taken place within the framework of a
peace treaty following a war.
 The new acquiring state cannot possess more rights over the
land than its predecessor had.
 That means, a third state which had some rights over the
newly acquired territory, e.g right of passage over the territory,
the new sovereign must respect them.
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 Cession does not occur only as a result of conclusion of

hostilities.
 It may occur in event of purchase of part of the territory of
another State, for example the purchase of Alaska by the
United States in 1867 from Russia; the sale of Denmark
territories in the West Indies in 1916 to the United States, etc.
it may appear in a form of exchange of territories or gifts of
territory.
– Through conquest and the use of force
 Conquest, the act of defeating an opponent and occupying all
or part of its territory, does not of itself constitute a basis of
title to the land.
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 It does give the victor certain rights under international law as

regards the territory, the rights of belligerent occupation.
 However, the territory remains subject to the title of the
ousted sovereign. Sovereignty does not pass by mere
conquest to the occupying forces.
 Article 2(4) of the UN-Charter require all States to refrain from
the threat or use of force against the territorial integrity or
political independence of any state.
 Force is permitted if exercised in self-defence-Article 51 of the
UN Charter.
 The 1970 Declaration of Principles of International Law
adopted by the UN General Assembly provides that;
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– The territory of a state shall not be the object of acquisition by
another state resulting from the threat or use of force. No territory
acquisition resulting from the threat or use of force shall be
recognised as legal.
 Hence the annexation of Kuwait by Iraqi in 1990 was not
recognized by the UN-Security Council 662 (1990). Through
its resolution 662 it declared such annexation to have no legal
validity and was considered to be null and void.
 All states were called upon not to recognise the annexation
and to refrain from actions which might be interpreted as
indirect recognition. Hence acquisition by conquest may
require a form of cession by the former sovereign or
international recognition
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– Through the exercise of effective control

 Occupation is a method of acquiring territory which belongs
to no one (terra nullius) and which may be acquired by a
state in certain situations.
 The occupation must be;
– By the state and not by private individuals
– Effective and intended as a claim of sovereignty over the area
 High seas cannot be occupied in this manner since they are
res communis (free for use by any one)
– Through Secession
 Use of war to separate from the main entity
Territorial Integrity and Self-
determination

 The principle of the territorial integrity of states is

well established and is protected by a series of
consequential rules prohibiting interference within
the domestic jurisdiction of states.
 This does not apply in event of the territorial
dispute centres upon uncertain frontier
demarcations.
 This conflicts also with the principle of self-
determination of people.
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 The Canadian Supreme Court in the Reference

Re Secession of Quebec case [1998] 161 DLR
(4th) 385 declared that;
– International law expects that the right to self-
determination will be exercised by peoples within the
framework of existing sovereign states and
consistently with the maintenance of the territorial
integrity of those states and that the right to unilateral
secession arises only in the most extreme of cases
and even then, under carefully defined circumstances.
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 The principle of self-determination cannot

apply once a colony or trust territory attains
sovereignty and independence unless under
the so called extreme circumstances like
those of Palestine and Israel.
– It cannot be used to further larger territorial claims
in defiance of internationally accepted boundaries
of sovereign states.
The doctrine of uti possidetis

 The Spanish Empire once ruled large part of

South America under various administrative
divisions.
 Upon granting independence, such administrative
divisions were deemed under the doctrine of uti
possidetis to constitute the boundaries for the
newly independent successor states.
– This helped in reducing post-independence hostilities
and foreign intervention.
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 African states explicitly stated in a resolution of

the Organization of African Unity in 1964 that
colonial frontiers existing as at the date of
independence constituted a tangible reality and
that all member states pledged themselves to
respect such borders.
 The doctrine of uti possidetis was discussed by a
Chamber of the International Court in Burkina
Faso v Republic of Mali ICJ Reports, 1986, p. 554
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 The Court defined this doctrine as;

– The essence of the principle lies in its primary aim of
securing respect for the territorial boundaries at the
moment when independence is achieved. Such
territorial boundaries might be no more than delimitation
between different administrative divisions or colonies all
subject to the same sovereign. In that case, the
application of the principle of uti possidetis resulted in
administrative boundaries being transformed into
international frontiers in the full sense of the term.
Jurisdiction

 According to customary international law States have

state immunity and therefore cannot be tried by foreign
courts which are judicial organs of foreign states. This
is based on the principle par in parem non habet
imperium. But a state can only act through its organs
like the member of the secret police in the given case.
– Jurisdiction concerns the power of the state under international
law to regulate or otherwise impact upon people, property and
circumstances and reflects the basic principles of state
sovereignty, equality of states and non-interference in domestic
affairs.
 Jurisdiction is a vital and indeed central
feature of state sovereignty, for it is an
exercise of authority which may alter or
create or terminate legal relationships and
obligation
The principle of domestic
jurisdiction

 It is a settled principle that while a state is supreme

internally, it must not intervene in the domestic affairs of
another state.
 Functions like setting of conditions for the grant of
nationality and the elaboration of the circumstances in
which aliens may enter the country are primarily
domestic affairs.
 However, a state must not formulate rules that may
cover even matters which contravenethe purview of
International Law.
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 The International Community is barred from

interfering in domestic affairs of any state as
envisaged under Art. 2(7) of the UN Charter
which declares that;
– Nothing contained in the present Charter shall
authorise the United Nations to intervene in matters
which are essentially within the domestic jurisdiction
of any state or shall require the members to submit
such matters to settlement under the present Charter.
Legislative, executive and judicial
jurisdiction

 There are important rules which guide the

question of jurisdiction.
 These are;
– The jurisdiction to prescribe (or legislative’
jurisdiction);
– The jurisdiction to adjudicate (or ‘judicial’
jurisdiction); and
– The jurisdiction to enforce (or ‘enforcement’
jurisdiction).
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 The jurisdiction to prescribe “is the right of a state to

make its law applicable to the activities, relations, the
status of persons, or the interests of persons in things.”
– The jurisdiction to prescribe is manifested in
domestic laws.
– Consequently, prescriptive jurisdiction may involve
states seeking to apply their laws extraterritorially,
that is, to activities that take place outside their
physical boundaries.

INNOCENT LAZARO MGETA-

30 07/26/21 MZUMBE UNIVERSITY
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 The jurisdiction to adjudicate refers to the power of a

state to require a defendant to appear before a court
and defend a claim.
 The enforcement jurisdiction of courts is perhaps
even more limited than their adjudicative jurisdiction.
 The courts of one country will not always enforce the
judgments of another country.

INNOCENT LAZARO MGETA-

31 07/26/21 MZUMBE UNIVERSITY
Claims over Jurisdiction

 A state may claim jurisdiction under International

Law on the basis of the following principles.
– The territorial principle
– The nationality principle
– The passive personality principle
– The protective principle
– The universality principle
– The Extradition
– Extraterritorial jurisdiction
The territorial principle

 The territorial principle applies in showing the sovereignty

power of the state to deal with matters within its territorial
home.
– It empowers the state to legislate and prosecute on matters within
its territory.
– All crimes committed or alleged to have been committed within the
territorial jurisdiction of a state may come before the municipal
courts of that state even if committed by foreigners.
– A foreign state, as a general rule, cannot have jurisdiction with
regard to events that have occurred or occurring in the territory of
another state-see Kaunda v President of South Africa [2004] ZACC
5
The nationality principle

 Nationality enables a person to enjoy a number of

rights and privileges that are attached to his state.
– A state retains jurisdiction to protect its nationals and
exercise jurisdiction upon them
 The ICJ in Nottebohm case ICJ Reports, 1955 p.4
stated;
– Nationality is a legal bond having as its basis a social
fact of attachment, a genuine connection of existence,
interests and sentiments, together with the existence of
reciprocal rights and duties.
The passive personality principle

 Under this principle, a state may claim jurisdiction

to try an individual for offences committed abroad
which have affected or will affect nationals of the
state.
– Although this principle has been objected by some
countries like the US and Britain, yet it is a principle
which seem to have acquired international recognition.
– The US itself applied this principle in the case of US v
Yunis (No.2) 681 F.Supp.896(1988).
The protective principle

 This principle provides that states may

exercise jurisdiction over aliens who have
committed an act abroad which has
prejudicial effects to the security of the
particular state concerned.
 It is a doctrine which has been well
established and applied by Britain in the case
of Joyce v DPP [1946] AC 347.
The Universality Principle

 There are crimes which are regarded as seriously

offensive to the international community as a whole.
– Traditionally such crimes were regarded to be piracy and
war crimes.
– However a number of other crimes are growing and being
included under this principle-e.g Crimes Against Humanity
– A number of International Instruments have taken
cognisance of the applicability of this principle, e.g the
Four Geneva Conventions of 1949
Extradition

 This is primarily a bilateral treaty law which

does not exist as an obligation upon states in
customary international law.
 Nonetheless a number of International
Instruments have insisted state parties to such
instruments in whose territories alleged offender
is present either to prosecute or extradite such
person-the Aut dedere aut judicare doctrine.
Extraterritorial jurisdiction

 Some countries seek to apply their laws outside their

territory.
– Extraterritorial claims of jurisdiction arise in relation to the so
called the doctrine of effects.
– It is the argument that a behaviour of a party in abroad is
producing effects within the territory of the state concerned.
– In the case of US v Aluminum Co. of America it was stated that;
 Any state may impose liabilities, even upon persons not within
its allegiance, for conduct outside its borders that has
consequences within its borders which the state reprehends.
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 The champions of extraterritorial application principle is the US.

 Such application however has received a number of opposition
from other states leading to courts in US to set factors that may
be taken into account when exercising extraterritorial
jurisdiction. These include;
– The effects test
– A balancing test-considering other nations interests and the
full nature of the relationship between actors concerned and
the US.
– A jurisdictional rule of reason
Immunity from exercise of
Jurisdiction

 As a principal rule, the jurisdiction of a state

within its own territory is complete and
absolute.
 As an exception to this rule there is the rule
of immunity from national jurisdiction.
 The immunity in question can be divided into
two categories: state immunity or diplomatic
and consular immunity.
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 State immunity covers the rights and

privileges granted a state, its government
and its representatives from national
jurisdiction,
 While diplomatic and consular immunity
covers immunity over official envoys of the
foreign state.
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 Previously, states enjoyed absolute immunity.

 However, under the doctrine of restrictive
immunity, a state immunity from national
jurisdiction is limited to concern not all acts.
 The acts are divided into jure imperii and jure
gestionis, respectively acts of which the state
cannot be held responsible for and commercial
acts, which the state does not enjoy immunity.
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 Acta jure gestionis is a Latin term meaning, acts by

right of management.
 It is commonly used in private international law.
Acta jure gestionis refers to activities of a
commercial nature carried out by a foreign State or
one of its subdivisions or agencies.
– However, these acts are not immune from the jurisdiction
and process of local courts under the modern doctrine of
restrictive foreign sovereign immunity.
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 Acta jure imperii is a Latin term meaning, acts by

right of dominion.
 This term is commonly used in conflict of laws.
 Acta jure imperii are activities of a governmental
or public nature carried out by a foreign State or
one of its subdivisions.
– Acta jure imperii also qualifies for state immunity under
the modern doctrine of restrictive foreign sovereign
immunity.
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 The restrictive theory is adapted by many

states, but some states still follow the doctrine
of absolute immunity.
 The ICJ has been so keen in protecting states
from the exercise of jurisdiction by other states.
 Read the case of Jurisdictional immunities of
the state (Germany v. Italy: Greece intervening)
Judgement of 3 February 2012
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 In the said case Germany claimed that Italy had:

– breached international law by permitting civil claims to be
brought against it in the Italian courts for war crimes
committed by the German armed forces during World War II;
– violated its sovereign immunity by taking measures of
constraint against a German property situated in Italy; and
– violated its sovereign immunity by declaring enforceable a
Greek judgment rendered against Germany concerning
similar acts.
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 The ICJ found in favour of Germany on all three

counts.  It held that Italy had acted in violation of
international law by contravening Germany’s right
to immunity both from jurisdiction and from
enforcement.
 The ICJ found that Germany was entitled to
sovereign immunity as a matter of customary
international law in respect of acts committed by
its armed forces during the Second World War.
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 The acts in question were clearly sovereign

acts (acta jure imperii) and so attracted
sovereign immunity.  Germany could not be
prosecuted in Italian courts in respect of such
acts, even if these had taken place on Italian
soil. 
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 The ICJ noted that it was not called upon in

these proceedings to address the question of
how international law treats the issue of State
immunity for non-sovereign activities,
especially private and commercial activities
(acta jure gestionis) to which, under many
laws, immunity does not apply.
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 The ICJ concluded that customary international

law continues to require that a State be accorded
immunity in proceedings for torts allegedly
committed on the territory of another State by its
armed forces in the course of an armed conflict. 
– Further, a State is not deprived of immunity by reason of
the gravity or seriousness of the violations of which it is
accused, and this was true even if the proceedings
involved violations of peremptory or fundamental (jus
cogens) norms. 
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 The ICJ noted the contrast in this regard

between the rules applicable to States and
those applicable to criminal proceedings against
State officials (citing the English court
judgments of Pinochet (No. 3) [2003] 1 AC 147
and Jones v Saudi Arabia [2007] 1 AC 270),
whereby immunity may not apply to acts of
officials that violate international criminal norms.
State Responsibility

 State responsibility constitutes a central institution

of the system of public international law.
 The law of state responsibility encompasses a
variety of issues.
– First, it defines the circumstances in which a state will
be held to have breached its international obligations,
as well as the limited catalogue of justifications and
defenses a state may rely upon in order to avoid
responsibility for an otherwise wrongful act.
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– Second, it covers the consequences of the breach of an

international obligation, including in particular the central
obligation to make full reparation, as well as the
obligation to put an end to continuing wrongful acts.
– Finally, it deals with the way the responsibility arising
from breach of an international obligation is implemented,
in particular governing which states may invoke the
responsibility of the wrongdoing state, as well as the
means by which responsibility may be implemented, in
particular through the adoption of countermeasures.
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 The primary point of reference in relation to the

law of state responsibility is the Articles on the
Responsibility of States for Internationally Wrongful
Acts (the ILC Articles), adopted by the International
Law Commission (ILC) in 2001, which constitute
the fruit of the ILC’s attempt to codify and
progressively develop the law in this area. 
– Read the article on State Responsibilities circulated to
you.