The Nature of International Law and the International System

Chapter 1

International law is not perfect; historically, there have been successes (invasion of Kuwait
by Iraq in 1990) and failures (Bosnia, Somalia and Sudan).

It is frequently compared to national law and its institutions (to determine its existence or
success) because they are seen as being the definitive model of what the law and a legal
system should be like.

The role of international law:

International law comprises a system of rules and principles that govern the international
relations between sovereign states and other institutional subjects of international law, such
as the United Nations.

The existence of international rules as a system of law:

If the existence of international as a ‘system of law’ is determined through its recognition by

the States, it needs to be determined how one can know that a state has recognized this
system of law:

a) If international law is practiced on a daily basis in the Foreign Offices, national

courts and other governmental organs of states, as well as international
organizations such as the United Nations.
b) When states – who are still the most important subjects of international law – do
not claim that they are above the law or that international law does not bind them
à shows that states follow international law as a matter of obligation and not simply
as a matter of choice or morality.
c) If the overwhelming majority of international legal rules are consistently
obeyed.
d) If international law is able to resolve disputed questions of fact and law. But,
because international law has a limited number of legal institutions (as compared to
the national levels) it sometimes fails, and therefore needs to develop better
institutions for stronger recognition.

The enforcement of international law:

The characteristic of a system of law is that rules are capable of being enforced against
malefactors’ and therefore; international law is not ‘true law’ because it is not generally
enforceable.
BUT there are, in fact, enforcement procedures that take place:

The Security Council:

 It takes ‘Enforcement action’ against a state when it poses a threat to the peace
or has committed an act of aggression or a breach of the peace.
 It primarily preserve peace rather than to enforce the law, although sometimes
these can coincide.
 But limitations to the exercise of this power, both political and legal – five
permanent member countries have a veto power, and one veto could/would put
a halt to the action.

Loss of Legal Rights and Privileges:

 Ensure that any violation of law results in the loss of corresponding legal rights
and privileges.

Judicial Enforcement:

 Done through institutions such as the International Court of Justice or the

International Criminal Court.
 Many problems arise in the national courts of states, in which case the national
courts may adopt international law to be applicable to both parties.

The effectiveness of international law: (why international law works)

The Common Good:

 Common self-interest and necessity of the states (which works because of today’s
interdependent society) Nations depend more on each other.

The Psychological Rubicon:

 Psychological barrier of breaking international law, simply because it is seen and

accepted as being law.

The Practitioners of International Law:

 The ‘habit of obedience’ derived from their training as national lawyers serves to
encourage respect for international law.

The Flexible Nature of International Law:

 Disputes are less likely to be seen as ‘right’ or ‘wrong’ / there is no ‘right’ answer;
great advantage for a system so bound up with politics and diplomacy.

The Political Cost:

 A state can lose influence and trust, less participation in foreign trade, a loss of
foreign aid or a refusal to enter into negotiations over some other
 matter. Furthermore, other states may not wish to enter into a treaty with a state that
has a bad reputation.

Sanctions:

 Ensures that laws are obeyed, representing one more motive for compliance.

The weakness of international law:

The Lack of Institutions:

 Disadvantage when there is a need to develop a comprehensive and general body of

rules.
 Some disputes may persist for decades to the detriment of all concerned.

The Lack of Certainty:

 Sometimes seems that this is the reason for many of the disputes between the states.

Vital Interests:

 Because international law lacks formal enforcement, the temptation and opportunity
to violate the law (due to vital national interests) is greater than in other (national)
systems.

Vital Rules:

 The validity of a legal system as a whole stands or falls by the degree to which these
vital rules are obeyed or enforced. International law often seems powerless to enforce
these vital rules, which shows that it is weak law.

The juridical basis of international law: (from where does it derive its legal validity?)

The Command Theory: (John Austin)

 Idea that ‘positive law’ is a system of rules amounted to a collection of orders

backed by threats (sanctions) coming from a sovereign source.
 International law = not ‘positive law’, because it does not stem from the commands
of a sovereign source à ‘Positive morality’ instead.
 Discredited theory as it does not at all describe national and international law

The Consensual Theory:

 No international law can be created without the consent of the state which is to be
bound by it.
o appears to reflect accurately what goes on in international society, where states
are bound by their voluntary self-restriction.
  However, certain difficulties with this approach to international law:
o Theoretical: it is not all clear why states can be bound only by self-imposed
obligations, there seems to be no necessary reason why this should be so,
especially since many rules are not really referable to consent.
o Practical: consent does not explain the existence of all legal obligations –
because some ‘new’ states are still bound by pre-existing rules of customary
law; they did not get the chance to decide whether to accept them or not.
 The consensual theory is a method for creating binding rules of law, rather than a
reason as to why they are binding.

Natural Law:

 Rules of law derived from the dictates of nature as a matter of human reason.
However, little support in international law à so heavily dependent on consent or
practice.

Ubi Societas, Ubi Jus:

 Juridical origin of international law lies in practical necessity – because international

society is a community of interacting and interdependent states that needs rules to
govern its life. Uncomplicated and simple view towards the binding quality of
international law “because it has to be”.

Needed and recognized by the states themselves.

Variations on a Theme:

Some jurists truly discuss the juridical origins of international law, while others argue for one
or other philosophical or theoretical approach to the interpretation or application of existing
rules:

a) Deconstructionist Theories: (ex. Koskenniemi)

International law has no legal objectivity at all; conjunction of politics, morality and
self-interest that can be used alternatively to justify or condemn any behavior
according to the standpoint of the critic.
b) ‘Value’ Orientated Theories: (ex. McDougal, Lasswell and Feliciano)
International law seen as the pursuit of certain pre-existing community values; all
rules should be interpreted and applied consistently with these values.
c) Realist Theories:
The real importance of international law lies not in the validity or otherwise of its
claim to be law, but in the impact is makes on the conduct of international relations.
It functions as the oil in the engine of international politics – this is what really
matters.
d) Non-statist Theories:
The importance of international law for individuals, or as a means of achieving
justice or as a means of accommodating the cultural and ethnic diversity of a
modern international society that is no longer centered on Europe (≠ fundamental
concept of international law as a system of law created primarily by states for
states).
The future of international law:

Wider exercise of jurisdiction by the International Criminal Court and a widening of the
scope of international law (to individuals, organizations and corporations). Some clearly
proposed trends are:

 Advances in international environmental law

 Advances in international communications law
 More treaty codification of customary law
 The UN calling for the abolition of the ‘veto’ and/or an increase in the number of
‘permanent member’ of the Security Council
 Some believe ‘regionalization’ will replace ‘universality’

 The first and most powerful reason why international law is to be regarded 
as law is that it is recognized as such by the persons whom it controls,
the states and other subjects of law.
 The Sources of International Law
Chapter 2

Art. 38 of the ICJ Statute:

- Traditional starting point of the sources of international law

- Provides an useful list of sources of international law for which the court can rule on
- Concentrates primarily on the activities of states
- Non-state actors may contribute to the creation of law through the development of custom
state practices. The evidence of a state practice falls under the heading of customary law.

Formal and material sources:

~ Function which source of law can perform within a legal system

~ Procedure and methods by which rules become legally binding are formal sources
of law
~ Formal source of law – process by which a legal rule comes into existence
 Creation of laws = obligations
 General principles of law with pre-existing legal validity
~ Material source of law – concerns substance and content of legal obligations.
 Identify the substance of the obligations which become law

Material and evidentiary sources:

~ Material source of law – describes solely the function, that the provision of the
substance of rules which formal source turns into law, performs
~ Evidentiary source of law – tells the precise content of the legal obligations which
bind states

 Customary law is a formal source – because it describes the way rules become legally
binding
 State practice is material source of custom – because it describes the way in which the
substance of customary rules is identified
 Diplomatic correspondence, actual state activity, etc compromise the evidence of a state
practice.

Asylum Case
Scope of article 38 ICJ Statute encompasses bilateral and regional international customary
norms and general customary norms in same way as it encompasses bilateral and
multilateral treaties.  Art 38 = Customary Law
International treaties and conventions

Treaty – bargain between legal equals and may cover any aspect of international law. Mean
by which states can create certain specific obligations.

~ Bilateral treaties – between two states

~ Multilateral treaties – between several states

Art. 2 (1(a)) of the Vienna Convention on the law of treaties:

Treaty means an international agreement concluded between two or more states in a
written form intended to have legal consequences and governed by international law.

Principles of treaties:

~ Treaties are voluntary in the sense that no state can be bound by a treaty without having
given consent to be bound by one of the methods recognized as effective in international
law for this purpose.
~ The consenting state is only bound vis-à-vis to other parties of this treaty, there are no
obligations to those not party of the treat.
 Non-parties may be bound by customaries laws with same content as treaties
~ Treaties codifying existing customary, the substance of these obligations may be binding
on all states
› Parties to the treaty bound in the normal way
› Non-parties bound by the system of customary laws
~ Treaties may lead to a norm applied by all states
› Parts of the treaty which attained status of customary law are binding to all
› Identification obligations

Law or obligations:

~ Contract treaties – treaty is a contract between governments of two or more sovereign

states, states have consented deliberately to be bound by terms of obligations therein.
 Material source of law
~ Law-making treaties
 Formal source of law
~ Difference is not in legal effect but in purpose and aim.

Custom:

Law which has evolved from the practice or customs of states

Elements of customary law:

› General state practice – actual activity (acts and omissions), statements made in
respect of concrete situations or disputes, statements of legal principle, national
legislation and the practice of international organizations.
› Consistency of the rule – settled practice, constant and uniform.
 › Generality of the practice – the practice must be fairly general and be applicable to
and common to a significant amount of states.
› Duration of the practice – how long has such practice been in effect?
› Opinio juris – belief that a practice is obligatory rather than habitual

General Principles of law:

~ Natural law doctrines – rules derived from natural law are said to have pre-existing
legal validity. Not really important unless enacted by a treaty or custom.
~ Material sources – law is covered by already treaties or customs
~ Rules and principles common to all legal systems
~ Principles of equity – principle of fairness and justice
~ General principles of international law

Judicial decisions:

Judicial decisions are said to be subsidiary means for the determination of law, although in
practice such decision play much more direct role in clarifying the sources of law. These
include the decisions of the ICJ, decisions of other tribunals such as the International
Criminal Court, the Permanent Court of Arbitration and International Tribunal for the Law of
the Sea, decisions of national courts on questions of international law.

Writing of publicists:

Provide support for the other sources of international law and may provide clarification in
cases of doubts. They are subsidiary.

Resolutions of international organizations:

These are omitted from art. 38 of the ICJ Statute but they can play a significant role in the
elucidation of customary law, the development of customary law, the identification of
opinion juris and in setting matters relating to the constitution of the organization. They
include resolutions of the Security Council and General Assembly of the UN, and may
include resolution of regional organization.

Soft Law

Used to describe two phenomena in International law:

~ Normative Rules – rules of international law that do not stipulate concrete rights or
obligations for the legal person to whom it is addressed. Content is flexible and vague.
~ De lege ferenda – principles which could become normative in the future. Description
of those values, guidelines, ideas and proposals that may develop into rules of
international law.
 The Law of Treaties
Chapter 3

What is a treaty?

 Legally binding agreement

 Two or more subjects of international law agree upon the terms
 The subjects must have the capacity to make a treaty
 The treaty has to be written, otherwise the “Vienna Convention on the law of
Treaties 1969” does not come into force (Article 2 VC)

Non-treaty circumstances creating legal obligations

 Art. 36(2) ICJ statute: states may unilaterally declare their acceptance
 The declarations have fully legal effect and creates legally binding obliagtions
between all states making the declaration
 Therefore, they are similiar to treaties
 Unilateral statements have no legal obligation, therefore they cannot be considered as
a treaty

Vienna Convention on the law of Treaties 1969

 The convention itself is not retroactive (Art. 4 VC)

 Apllies only to treaties between states; they have to written and governed by
international law (Art. 1 and 2 VC)

Customary law:

The relationship between the Convention and customary law is difficult to assess
because parts of the VC can also be found in customary law

Art. 3 and 4 - VC preserves customary law in (“independently of the Convention”)

Art. 31 - treaty interpretation reflect customary law
Art. 43 - VC is part of customary law

Codifications of customary law in the VC:

 Fundamental change of circumstances (Art. 62)

 Material breach (Art. 60)
 Supervening impossibility (Art. 61)
 Rules to capacity (Art. 6)
 Effect of unauthorized agreement by a representative (Art. 8)
 Observance of treaties (Art. 26)
 Relationship with national law (Art. 27)
Authority to conclude treaties

Every state has to govern by national law who is responsible for signing a treaty

o Art 46 - Simple non-compliance with national law is not enough to invalidate a

state`s consent to a treaty
o Art. 27 - A state cannot invoke its national law as a ground for non-fulfillment of
any obligation in any treaty
o Art. 7 - If a person possesses full power or state practice gives that person full
power, he or she can be deemed as authorized to conclude the treaty
 Art. 7(2) - certain person like the head of government or the Foreign
Ministers have that confidence in any event

Modes of consent

Art. 11 - Consent can be expressed by “signature, exchange of instruments

constituting a treaty, ratification, acceptance, approval or accession or by any other
means if so agreed”
Art. 15 - If a state does not participate during the negotiation upon the treaty, they are
usually bound by their accession

o Further modes are discussed in Art. 12-17

Entry into force

Art. 24 - The states have agreed upon such date the treaty comes into force
Art. 24 (2) - If no special date is given, the treaty comes into force at the point when
all negotiating countries agree

The scope of legal obligation

The fundamental rule

 Art. 26 - “pacta sunt servanda”, the rule that treaties are binding on
parties (customary rule).
 Art. 27 - National law cannot be invoked as a reason to for failure to
perform a treaty obligation

Reservations

o Reservations have to be regarded as unilateral statements (Art. 2 (1,d))

o They are only allowed for multilateral treaties
o They are intended to modify or exclude binding obligations
o Sometimes the reservation has be accepted by the other member states to have
a legal effect
o Distinction between reservation and interpretative declaration:
 Reservation: wants to modify or exclude obligations
 interpretative declaration: offers a State´s understanding of a provision,
but does not modify or exclude the provision
 o every state has the liberty to make reservations (Art. 19), unless it is not
forbidden by the treaty itself
o if the treaty authorizes the states to make reservations, they do not have to be
accepted by other parties (Art. 20(1))
o if a state´s reservation is not accepted, the state cannot become a party of the
treaty (Art. 20(2))
o when the reservations are accepted, the treaty is in force between the states as
modified by the reservation
o Void reservation: if the reservation are incompatible with the object and
purpose of the treaty (Art. 19)

Interpretation

o Governed by Art. 31 and 32 represent customary law

o Preference is given to the ordinary meaning of the terms in the treaty
o The context of the ordinary meaning provide the preamble and the agreements
o Travaux préparatoires (Art. 32) = record of the negotiations as a supplementary
mean for interpretation

Problems in formation

Art. 46 - Non-compliance with national law does not void the treaty
Art.48 - If a state made an ‘error’ on an essential basis, it can invalidate its consent
Other problems are governed under:
~ Art. 49 - fraud
~ Art. 50 - corruption of representatives
~ Art. 51 - coercion of representatives
~ Art. 52 - procurement of the treaty by use of force

Termination

o A state can withdraw from a treaty (Art. 55)

o Can occur if the treaty is inconsistent (Art. 59)
o Inconsistency with rules of jus congens = customary law which cannot be
modified by treaty law (Art. 53 and 64)
o Material breach (Art. 60)
o Supervening Impossibility (Art. 61); impossibility of performance
o Rebus sic stantibus: fundamental change of circumstances (Art. 62)

Extra Stuff from Tutorial:

If you have signed a treaty, but not ratified it, then you are not bound by it until it has been
ratified, but in the meantime, you should not commit actions that are contrary to the treaty.
 Personality, Statehood and Recognition

Chapter 5

The concept of personality in international law:

Main capacities of an international legal person:

1. Claims before international (and national) tribunals in order to vindicate rights given
by international law.
2. Subject to some or all of the obligations imposed by international law.
3. Power to make valid international agreements binding in international law.
4. Immunities from the jurisdiction of the national courts of other states.

There are two types of personality in international law:

 Original Personality: belongs to states once they satisfy the criteria of statehood
 Derived Personality: flows from the recognition by states that other entities may
have some competence in the field of international law.

The ICJ stated (in Opinion on the Legality of the Threat or Use of Nuclear Weapons (WHO
Case), 1996) that ‘international organizations are subjects of international law which do not,
unlike states, possess a general competence. International organizations … are invested by
the states which create them with powers, the limits of which are a function of the common
interests whose promotion those states entrust to them.’ (This is a clear example of ‘derived
personality’)

The subjects of international law:

 States: States are the most important and most powerful subjects of international law.

Criteria of statehood (Art. 1 Montevideo Convention)

a) A Permanent Population
b) A Defined Territory
c) A Government
d) The Capacity to Enter into Legal Relations: A territory cannot be regarded as a
state so long as it is under the control, direct or indirect, of another state.

The Manner of Attainment of Capacity to Enter into Legal Relations:

(a) If the territory or ethnic group declaring factual independence is able to claim
the right of self-determination, sufficient to attain legal independence and
“statehood” (ex: former colonial, whether or not with the assent of the former
colonial power). Right of secession.
(b) If a territory satisfies the factual criteria of statehood but also violates one of
these general principles, it may not be recognised as a state by others.
 Other Territorial Entities:

Treaty Creations:
ex. Berlin after the end of the Second World War, when it was controlled by Russia,
America, England and France à ‘Treaty for the Governance of Berlin’

Territorial Entities as Agencies of States:

It is possible that two states might agree to administer jointly a territory through an
autonomous local administration. This local body could be granted limited capacities
in international law to act on behalf of the territory.

Territories per se:

Due to the relative nature of international personality, each territorial entity aspiring
(seeking) to international personality should be judged on its own merits (qualities)
and the cate5/gories of international legal persons should not be regarded as closed or
exhausted by previous examples.

 International Organizations:

To be a subject, they require a certain degree of international personality à will vary

according to the organization, its objectives and the terms of its constitution or
constituent treaty.

 Qualified Legal Personality – IGO dependent on situation and states it is

involved with to make own decisions.
 Objective legal personality – IGO independent from state to make its own
decisions.

Reparations for injuries case:

When IGO has objective legal personality
o IGO has legal capacity to bring claims
o States have obligations. Breaches constitute a legal matter
 Implied powers

 Individuals:

 Only since after the end of World War II

 International Law grants personality in the form of rights = the law of human
rights
 International Law impose obligations under international criminal law
~ War crimes
~ Crimes against peace
~ Crimes against humanity
 Piracy is a crime to all mankind and has universal jurisdiction

 Corporations:

International personality only exists when relationships are governed by international

law; otherwise the interactions would be guided by the various national legal systems.
Miscellaneous:

 Personality denotes the capacity to act in some measure under international law.
 It is a flexible and open-ended concept that can mean different things in different
circumstances.
 States have international personality in the and the United Nations is not far behind.
 Other organizations will have that degree of personality that enables them to
discharge effectively their functions.
 The degree of personality enjoyed by the other subjects of international law will
depend on many factors – a constituent treaty, a constitution and, importantly,
recognition by states.

Recognition: recognition in international law:

The act of recognition itself may take various forms:

 It may consist of a formal pronouncement

 An official letter to the newly recognized entity
 A statement before a national court
 It may be inferred from the opening of full diplomatic relations

It is a political act - the decision whether to recognize will be one for the executive
authorities of each state and will be influenced by political, economic and legal
considerations.

Recognition does not need a specific amount in order to be valid – if just one state
recognizes a territory, it is sufficient.

Recognition is not necessary for a state to be a state – if it fulfils all the criteria of
statehood; it is considered a state (even if no one recognizes it)

 Recognition does not determine statehood, but it acknowledges legal capacity. 

Recognition is a necessary pre-condition to become a state.

 Declaratory Theory:

According to this theory, when an existing state ‘recognizes’ a new state, this is said
to be nothing more than an acknowledgement of pre-existing legal capacity. The act
of recognition is not decisive of the new entity’s claim to statehood, because that
status is conferred by operation of international law.

 Constitutive Theory:

This theory denies that international personality is conferred by operation of

international law. The act of recognition is seen as a necessary precondition to the
existence of the capacities of statehood. This theory seems to be more in accord with
international practice.
Other stuff that was discussed in tutorial:

 Difference between national and international law:

The way that it is made (int. law is made by states for states and other international
organs where all are seen as equal and under the law), in national law it is made by a
chief legislator who makes the law for the people and organs of the nation, he finds
himself in a higher position than the others.

If a nation violated an international law, then they can only be held liable if someone
files a ‘complaint’, just as in national law – so if no one says anything, a country can
get away with a violation – which is possible due to economic and political relations
between countries.

 Human Rights v. Humanitarian Law:

Human Rights: the rights that EVERYONE has – the right to life and possession and
education for ex.

Humanitarian Law: synonym of the law of war – it regulates how states can give aid
to other states in case of war – regulates the conduct and responsibilities of states that
are at war.

 A monist v. a dualist system:

In Monism: international rules are directly applicable without having to be converted

into national law

What is Naturalism? – used to be important, not so much anymore.

Much older than positivism, at first it always referred to God, De Groot was very
occupied with this, and said that it was not only good, but also through reasonable
thinking in order to follow fairness, justice and equality. According to it, all other
laws had to follow these principles in order to be considered law. Individuals are
more in the centre of natural law – because it is about equity and fairness and stuff.

 In Dualism: the international rules have to be re-written into national law to be

applicable.

What is Positivism? – The most important base of law today.

This is man-made law – there is no higher law, and the law and ethics are separates,
there is a formal procedure, and if you follow it, then a rule is seen as a rule of law
and it doesn’t matter if it is just or fair or not. States are in the centre of positivism.
 Horizontal vs. Vertical Expansion

Horizontal Expansion: when member states join

Vertical Expansion: states are not the only actors anymore, but also
international/supranational organizations.

 Recognition of Colonies:

If a new state is going to be formed (out of a former colony) within a certain territory,
then it has to be formed within its own boundaries – it cannot change its physical
location.

 What you are if you are not a State:

 determines their level of international personality

~ Rebels – no legal personality

~ Insurgents – depends
~ Liberation movements / armies – have legal personality
 Jurisdiction and Sovereignty

Chapter 6

General Principles of Jurisdiction

Two Competing General Rules of Jurisdiction:

1. A state may not exercise its power of jurisdiction in the territory of another state
(Lotus Case)
2. A state is free to project its jurisdiction outside its territory, so long as it is not
prohibited by a contrary rule of international law in a specific case.

 Depends on the concept of state jurisdiction over: persons, property and territory

 The Absolute Nature of Territorial Jurisdiction = a fundamental rule of international

law where the jurisdiction of a state within its own territory is complete and absolute.
 1st principle of the Lotus Case

 The Jurisdiction to Prescribe = the power of a state to bring any matter within the
awareness of its national law
 2nd principle of the Lotus Case

 The Jurisdiction to Enforce = enforcement of jurisdiction takes place within ones

territory, unless there is an agreement that the enforcement can take place elsewhere

Civil and Criminal Jurisdiction

 Generally, the scopes of jurisdiction in civil and criminal matters are of equal extent.
 According to the Harvard Research Draft, there are five heads of jurisdiction over
persons in international law that apply equally to civil and criminal matters:

 Territorial Jurisdiction:

Jurisdiction over matters arising in its own territory:

 Objective Territoriality = an offense completed in your territory

 Subjective Territoriality = an offense started in your territory

 Extra-Territorial Jurisdiction

Acts occurring abroad may cause an offence with local jurisdiction. Individual may be
subject to local courts (an unusual form of jurisdiction)
 Nationality Jurisdiction:

Jurisdiction over matters relating to the national of a state (where ever the action may
have happened)

 a national is entitled to ‘diplomatic protection’ of their state at all times

 jurisdiction will not be exercised until the national has return within the territorial
boundary
 home state may not exercise jurisdiction if the matter has already been dealt with in
the other state(s)

 Universal Jurisdiction:

Jurisdiction over crimes that reach a certain ‘destructive’ level (against jus cogens) – can
be done by any state
 jurisdiction will depend on the nature of the offence

 Protective Jurisdiction and the ‘Effects’ Doctrine:

Jurisdiction over matters that have a harmful effect on ‘the state’, irrespective of where
and by whom they happen, can be regarded as an accepted head of jurisdiction under
customary international law

 ‘Effects’ Doctrine = many states have legislated to include as many incidents as

possible as having a ‘harmful effect’ on the state, so as to claim more jurisdiction
rights

 Passive Personality Jurisdiction:

Jurisdiction over matters relating to the national of a state who has been the victim of the
crime, irrespective of the nationality of the offender or where the crime occurred.

Concurrent Jurisdiction = The different heads of jurisdiction exist so that two or more
states may be entitles to exercise their jurisdiction over the same person(s) in respect of
the same event

Double Jeopardy = It is possible that if enforcement action has or will be taken against
an individual, that this person will be subject to a ‘second punishment’ by another state

 Firmly Established Principles = territorial, nationality (in both forms) and universal
principles
 Increasing Importance = protective and effects principles

The Acquisition of Sovereignty over Territory

There are several recognized methods by which a state may gain title to a piece of territory;
these are considered below:
 The Exercise of Effective Control – Occupation and Prescription:

The control of territory and the peaceful and effective exercise of the functions of a state
therein is the primary means of acquiring title to territory in international law; this can be
subdivided into two classes:

o Occupation: when the exercise of authority over a territory occurs that does not
belong to another state
o Prescription: when the exercise of authority over a territory occurs that formally
belongs to another state

 Kasikili/Sedudu Island Case (Botswana v Namibia) four conditions for a successful

claim of prescription were laid out:

1. The possession had to be exercised in the character of a sovereign

2. The possession must be peaceful and uninterrupted
3. The possession must be public
4. The possession must endure for a length of time

 The following are further requirements that need to be met / need to be present:

 Apparent Display of Sovereignty

The state claiming title must have exercised the powers of a state within the
territory à has to show that it has set up an effective local administration, that it
can control and protect the population or that it has established a system of
national law.

This display may vary according to the type of territory in question

Absence of protests by other states is significant

 Intention to Acquire Sovereignty

There must also be a clear-cut intention of the sovereign to acquire this territory

 Continuous Display and the ‘Critical Date’

The ‘critical date’ is the date at which the question of sovereignty is to be

assessed – sovereignty must be present from the acquisition of the territory up to
this date without interference.

 Peaceful Display

There may be no objection by other states (but this must have extensive nature in
order to pose a threat)

 Intertemporal Law

The law to be applied to a given dispute is the law in existence at the time the
dispute is to be settled – the critical date
 Consequently, title to territory may be validly created under the rules of
international law existing at the critical date

 Discovery

Must be followed by acts of effective occupation to mature into full sovereignty à

otherwise other state can claim territory

Island of Palmas Case

If another sovereign state begins to exercise continuous and actual sovereignty
over a territory, the actual discoverer cannot contest his claim. The claim of
exercised authority is greater than the claim based on mere discovery

 Cession and Treaty:

(cession = gift) Treaty ex. = the transfer of Alaska from the USSR to the USA

 Use of Force – Conquest:

was legal before 1945, but today such an acquisition of a territory is seen as
being void/illegal

 Accretion and Avulsion:

Accretion = gain over new territory as a result of the expansion of its territory –
ex. soil deposits in river deltas

Avulsion = more dramatic gains of new territories – ex. the creation of new
islands in territorial waters due to volcanic activity

 Judicial Decisions:

Judicial decisions can give sovereignty over a territory based on the above
principles, but only once the decision falls

 Uti possidetis and other Principles Relating to Territorial Acquisition:

Uti possidetis = the frontiers of newly independent states are to follow the
boundaries of the old territory from which they emerged and they cannot be
easily altered through unilateral action

Continuity Principle = a state may claim title over territory not forming part of
its land mass – such as islands – by virtue of being the nearest sovereign state

 Self-Determination:

This relates to a territory (often colonies or former union states such as with the
USSR) becoming independent – the crucial point here is that self-determination
requires a free and genuine expression of the will of the people concerned
Rights over Foreign Territory

It is possible for one state to grant limited rights over its territory to another state, which may
be done by treaty or it may arise by way of customary law.

Areas outside the Exclusive Jurisdiction of any State

 Outer Space:

Every state enjoys jurisdiction over the airspace immediately above its territory and
territorial sea – but how far up does this go?

o It ceases to exist where outer space begins ≈ somewhere between 150 & 200 miles
up from Earth (unequal disagreement on where space really begins according to
various states)
 1963 Declaration of Legal Principles Governing the Activities of States in the
Exploration and Use of Outer Space

 The Antarctic:

The area is subject to claims of sovereignty of 7 states: the UK, Argentina, Chile, France,
Australia, New Zealand and Norway

It was suggested that the Antarctic should be part of ‘the common heritage of mankind’
 1959 the Antarctic Treaty

 The Arctic

Consists mainly of frozen sea and isolated islands à claims of sovereignty by Denmark &
Norway. The greater area is composed of permanently shifting pack-ice à claims of
sovereignty by Russia & Canada – resistance by Norway & USA

Currently = there is some disagreement over the precise status of the Arctic
 there is no treaty in regime

Jurisdiction over Airspace and Aircraft

A state has exclusive jurisdiction over the airspace immediately above its territory – unless
otherwise agreed, a state may prohibit all aircraft movement over its territory and may take
any action necessary to preserve its sovereignty.

Formulation of the basic principles regarding jurisdiction over airspace

 1944 Chicago Conference on International Civil Aviation
 Immunities from national jurisdiction
Chapter 8

As a general rule, the territorial sovereign is the master of all things and person present in
state territory is subject to the jurisdiction of local courts.

 Principle of state immunity – rule of international law that a foreign sovereign state is
entitled to certain immunities from the exercise of national jurisdiction.

A violation of those immunities by the host state will give rise to international responsibility

Immunity from national jurisdiction can be split into two categories:

 State immunity - concerns rights and privileges accorded to a state, its government,
representative and property within the national legal system of other states.
 Diplomatic and consular immunity - deals with the immunities enjoyed by official
envoy of the foreign sovereign state and the duties owed to them by the host state.

State immunity

The precise rules governing the scope of immunity in a particular state is determined by the
national laws of the state. However, states have a legal duty under international law to ensure
that a foreign state is accorded immunity in appropriate cases.

ICJ Court considers that the rule of state immunity occupies an important place in
international law and relations
 derives from principle of equality of states (Art. 2(1) UN Charter)

General conception of immunity in and rational in international law

 Non-justiciability – national court has no competence to assert jurisdiction at all.

Substantive issue cannot be the subject of judicial proceeding before a national court.
Ratio materiae – based on substance of the issue
Issues of non-justiciability:
~ Matters cannot be properly raised in state court other than those of state directly
concerned. i.e. validity of constitution or legislative act violating international law
~ Issues not raising questions of national law, i.e. validity of a treaty
~ Doctrine of n-j for ‘acts of state’ - Courts (most states) see n-j as any actions of a
government nature by a foreign state in its own territory and actions of other state
in the conduct of their own foreign affairs.

 Immunity – national court has jurisdiction over the subject matter of the dispute, but is
not permitted to exercise it in case because one of the parties is a foreign state or gov.
Ratio personae - based on identity of the party
 ~ Par in parem non habet imperium – idea that it is legally impossible for a
sovereign power to exercise authority over another sovereign power.
~ The jurisdiction of the nation within its own territory is necessarily exclusive and
absolute. It is susceptible of no limitation not imposed by itself. Immunity is
voluntarily given.

State immunity in international law

Doctrine of restrictive state immunity – a state has immunity from the jurisdiction of a
local court only in respect of classes of act. State should have immunity only if acting as a
state.

 Jure imperii – acts of a sovereign nature in respect of which the state is immune
 Jure gestionis – commercial acts in respect of which the state is subject to the
jurisdiction of the territorial sovereign. State treated like a litigant should act like
one.
 Purpose of the act
If the purpose of the transaction is non-sovereign, there is no immunity.
Art. 2 ICL Draft Articles – allows purpose of ‘transactions’ to be relevant in
determining its nature if, in the practice of the state concerned, ‘purpose’ has been
relevant consideration in the past.

 Nature of the act

Provides support for jure gerstionis

 Subject matter
Provides support for jure imperii

 Two-stage test
Combines both jure imperii and jure gestionis approach

 Immunity and violations of international law

- certain matter have universal jurisdiction in international law
- immunity remains available even if the alleged offence is one that might be regarded as
a crime for which an individual may be tried under international law and even if it
involves a breach of rule of jus cogens.

The ILC Draft Articles

Art 5 - State enjoys immunity for provisions

State not immune:

Art. 10 – In respect of a ‘commercial transaction’.
Art. 11 – In relation to specific matters such as employment contract
Art. 12 – Cases of personal injury or damages to tangible property in forum state
Art 18 and Art. 19 - Immunity from jurisdiction enforcement by courts

Heads of State

Head of states enjoy immunities for themselves for acts committed during their office in
respect of their official functions.
 This immunity continues to exist even when the head of state is not in office anymore.

Private acts done while in office lose immunity once the head of state ceases to be in office
can be subject of an action in national courts.

Congo v. Belgium

Arresting minister of foreign affairs failed to respect the immunity from criminal
jurisdiction (even for an international crime) and the inviolable a minister enjoys under
international law.  No arrest warrant

Diplomatic and consular immunities

Diplomatic and consular immunities are personal in the sense that they are enjoyed by
individuals, rather than the state itself. They do not benefit the individual but enables him to
carry out his designated functions on behalf of the state.

International Law

Law on immunities can be found in:

~ Vienna Convention on Diplomatic Relations 1961
~ Vienna Convention on the Consular Relations 1963

Preamble of VCDR - Propose of immunity for diplomatic staff is to enable them to represent
their home state effectively without hindering from receiving state.

 Immunities relating to person

Art. 1 – Categories of person which may enjoy some or all immunities specified therein
Art. 29 – The person of a diplomat is inviolable, and may not be arrested or subject to
other form of detention. Receiving State under duty to protect him and prevent any attack
on his person, freedom or dignity.
Art. 31 – A diplomat is completely immune from criminal jurisdiction of the receiving
state and immune from civil and administrative jurisdiction. Except regarding
professional or commercial activity outside his official functions.
Art. 37 – Immunities are lost if they are nationals or permanently residing in receiving
state.
No immunities on home state; can be prosecuted on home state
for crimes committed on host state.
 Immunities relating to property

Art. 22 – The premises of the mission are inviolable and agents of the receiving state may
not enter them without consent of the head of mission
 Immune from search and seizure
Art. 1 – These premises include any building and ancillary land, irrespective of
ownership, which are for the purpose of the mission, including residences.
Art. 24 – Even outside of premises, documents and archives are immune of the mission
Art. 45 – Immunities and obligation to protect continue to exist even if diplomatic
relations are broken off armed conflict

 Freedom of communication

Art. 26 – receiving state obliged to respect freedom of movement of all members of the
mission and this may curtail only in respect of ‘zones entry into which is prohibited or
regulated for reasons of national security’
Art. 27 – receiving state obliged to permit and protect free communication for all official
purposes and use codes to communicate with home state is authorized.
Art. 28 – Protection of diplomatic bag
Art. 28 (2) – preserves the request or return rule for consular bag
Art. 30 – Protects luggage of diplomatic staff

 Abuse

Art. 41 – Duties of all personal enjoying immunities and privileges to respect laws of
receiving state
Art. 32 – Receiving state may request home state to waive immunities for a person

International Organizations

Many international organizations have personality in international law, with functions to

perform and need to act within local legal systems to achieve their aims. Staffs of
international organizations are entitled to certain immunities and privileges just like a state
with its diplomats.
 The Law of the Sea

Chapter 8

Sources of the law of the sea

Mix of customary law and treaty law, both bilateral and multilateral

 The 1958 Geneva Conventions:

Four multilateral conventions on:

1. The Territorial Sea and Contiguous Zone

2. The Continental Shelf
3. The High Seas
4. The Fishing and Conservation of Living Resources of the High Seas

All in force although in many aspects superseded by 1982 Convention:

 For non-parties to 1982 Convention, 1958 Convention still valid for relations with
states that have signed
 Recent case law confirmed that much of the 1982 Convention has passed into
customary law

 The 1982 Convention on the Law of the Sea and the 1994 Agreement on the Deep
Sea Bed

 Entered into force in revised form on 16 November 1994

 Adopted by a vote of 130 to 4
o Neither the USA, nor the western allies prepared to ratify the convention in its
original form à Objections to Part XI (Deep Sea Bed)
o Compromise: 1994 Agreement relating to the implementation of Part XI of the
Convention
o 1982 Convention, as modified, can truly be regarded as comprehensive
statement of the law of the sea for the 21st century
o Convention has significant impact on customary law
o Relationship between 1958 and 1982 Convention:
 If both states parties to 1982, this convention prevails
 If both states parties to 1958 but only one to 1982, relations are
governed by 1958
 If a state is not party to any of the conventions, relations are governed
by customary law
 In addition to the conventions, there is customary law, bilateral treaties
and other multilateral treaties like the ‘International Convention for the
Safety of Life at Sea 1974’ and the ‘International Convention for the
Prevention of Pollution from Ships 1973’ (both quite specific and
about technical matters)
The Territorial Sea and Contiguous Zone

 Territorial Sea – Nature and Rights

Art. 2 LOS: “sovereignty of a state extends beyond its land territory and its internal
waters, to a belt of sea adjacent to its coast”
State has full legislative jurisdiction over territorial sea
 Inherited Right

BUT: LOS Arts. 27 and 28 – limitations in international law: no criminal jurisdiction

over foreign vessels etc.
 Reasons of international comity

Anglo-Norwegian Fisheries Case

Claim to the waters is supported by customary law (inherited right).

 Delimitation

No provision on the breadth of the territorial sea in 1958 convention.

There has never been any truly consistent state practice.
Controversy between maritime states (wanting to minimize coastal states’ jurisdiction)
and coastal states

LOS Art. 3: each state has the right to a territorial sea not exceeding 12 nautical miles in
width

Different approaches to determining the landward edge of the territorial sea:

 ‘Trace parallel method’ of delimitation = with the outer edge of the territorial sea
following the general shape of the coast.
 LOS Art. 7 - Straight baselines
 LOS Art. 15 - Delimitation between opposite and adjacent states: territorial sea may
not extend beyond the median line which is equidistant from the nearest points of the
baselines of the coastal states

North Sea Continental Shelf Case

Parties must agree on drawing borders taking into accounts both maximization and
proportionality into account.

The Contiguous Zone

States claim (additional) jurisdictional rights (for limited purposes) in a zone of waters
beyond the outer edge of the territorial sea

LOS Art. 33 - Since the extension of the territorial sea, the contiguous zone is extended to 24
nautical miles from the baseline of the state
 Because of the extension of the territorial sea and the seaward push of coastal jurisdiction
(see EEZ), the contiguous zone has become less important

The Exclusive Economic Zone

 Part V of LOS:

Belt of sea, adjacent to the coast, extending up to 200 miles from the baseline of the territorial
sea à coastal states are given ‘sovereign rights’ for the purpose of exploring and exploiting
the natural resources of the area

BUT: ‘sovereign rights’ does not mean that the coastal states have full jurisdiction over the
EEZ (no natural extension of the land-based sovereignty)

The EEZ is a regime where the coastal state is given those rights and powers which are
necessary to enable it to utilize the resources of the EEZ but, after that, the rights of other
states remain intact

LOS Art. 74 - Delimitation of the EEZ between opposite and adjacent states shall be affected
by agreement on the basis of international law

The Continental Shelf

 Part VI of LOS, Origin in customary law

LOS Art. 77(3) - Extension of the statehood of the coastal state does not have to be
claimed or recognized by other states
 Continental shelf rights are inherent in statehood
 Coastal state does not have sovereignty over the shelf but sovereign rights

LOS Art.77 - Purpose of exploring and exploiting natural resources

 (natural resources = non-living resources!!)

 Delimitation of the Shelf – Seaward Limit

Art. 76 LOS:

1. (1) All states have a continental shelf in law up to 200 nautical miles from the
baselines of the territorial sea
2. (1) If the physical extent of the shelf goes beyond 200 miles, the coastal state has
shelf rights to the outer edge of the continental rise
3. (5) The continental shelf in law cannot extend beyond 350 miles

Suggestions about the merge of the EEZ and Continental Shelf regimes were objected
by states like the USA and the UK (having natural shelves that extend beyond the
limits of 200 miles)
 Delimitation of the Shelf – Opposite and Adjacent States

Art. 83(1) LOS: delimitation between opposite or adjacent states must be effected by
agreement on the basis of international law […] in order to achieve an equitable solution

Customary law: see North Sea Continental Shelf cases

 Relationship between Continental Shelf and EEZ

The continental shelf and the EEZ are legally autonomous although within the 200-mile
limit they operate within the same area and similar non-living resources

Differences:

a) The continental shelf may extend beyond 200 miles

 The EEZ has fixed limits

b) The shelf rights are inherent in statehood

 The EEZ is optional and has to be claimed

c) Waters of the EEZ are sui juris

 Waters above the shelf where it extends 200 miles remain high seas

d) The Continental Shelf covers non-living resources

 The EEZ covers all resources within 200 miles

e) There is an obligation to preserve the EEZ resources

f) For shelf rights beyond the 200-miles limit, coastal states have to contribute a
percentage of their revenue to the International Sea Bed Authority

g) Criteria for delimitation of both zones are expressed in identical terms, single
boundary for both zones between competing states is sensible result
 BUT: application of common criteria can lead to different boundary for each
zone because of need for equitable result

h) Other states’ commercial and shipping activities are not hindered in the waters
above the shelf if those waters are high seas

The Deep Sea Bed

Legal rules governing the status and the use of the deep sea bed are found in LOS 1982 and
the 1994 Agreement (agreement modifies convention and takes precedent)

LOS Arts. 136, 137, and 140 - The deep sea bed (starting from the outer edge of the
continental shelf) is not susceptible to any state (position in customary law)
LOS Art.141 - Deep sea bed might be used for peaceful purposes only (customary law)
LOS Art. 141 - All states (coastal and landlocked) have access to the area (customary law)
Resources of the deep sea bed are to be used for the common heritage of mankind and are
subject to and international legal regime

Archipelagos

Convention lays down specific regime for archipelagic states

Part IV of LOS 1982 provides that archipelagic states may use straight baselines to join the
outer islands
 Waters inside baselines are ‘archipelagic waters’ à state has full sovereignty over them
BUT: LOS Art. 52 - Right of innocent passage shall exist in archipelagic waters

Quick Tutorial Summary:

 Sources of law of the sea:

 Customary law
 1958 Convention
 1982 Convention à 1994 Amendment of Part 11 (about the Deep Sea)

 Different sea zones:

 1st = Territorial Sea (12 nautical miles = sovereign area that is inherent in statehood)
 2nd = Contiguous Zone (12 further nautical miles = customs, fiscal, sanitary purposes
– inherent)
 3rd = EEZ (176 further miles = allows exploitation of natural resources – not inherent)
 4th = Continental Shelf (up to 200 nautical miles (max. 350 miles) = exploit non-
living – inherent)
 5th = Deep Sea Bed (everything after the end of the continental shelf – no one
sovereign)
 6th = The High Seas (everything after the end of the EEZ = above the D.S.B. – no one
sovereign)

 Delimitation Methods: baseline = point where the water starts at the water levels of low-
tide

 Parallel Baseline method

 Straight Baseline method à equidistant principle for opposite/adjacent states
 Common Maritime zone/boundary = for EEZ of opposite states
 State Responsibility

Chapter 9

 State Responsibility = circumstances in which a state will be fixed with legal

responsibility for the violation of an international obligation and the consequences this
entails.
 Source = found in customary law, judicial pronouncements, bilateral treaties and UN
General Assembly resolutions dealing with specific topics.
 Applicability = when a state violates an international obligation owed to another state.
 Purpose = to make reparation and/or suffer the consequences of being internationally
responsible – enough that there has been an internationally unlawful act attributable to the
state.

What is and illegal act?

 Can arise from either an act or an omission.

 ‘Objective’ or ‘risk’ theory of responsibility = It supposes that once a breach of

obligation is established, the state bears all the risk irrespective of any fault.
 ‘Subjective’ or ‘fault’ theory of responsibility = It denies that responsibility arises
even if there is conduct in violation of a binding obligation, unless the state is in some
way subjectively to blame.

Responsibility for violations of rule of jus cogens might be strict, but responsibility for
violations of commercial treaties might be based on fault.

Art.33 = Obligations of the responsible State may be owed to another State, to several States,
or to the international community as a whole, depending in particular on the character and
content of the international obligation and on the circumstances of the breach.

Attributability

An unlawful act of the state itself

When specific individuals are acting on behalf of the state so as to give rise to international
responsibility – if they don’t, then no breach of international law has occurred.

 Activities of organs of the state

States are responsible for the activities of all its organs, even if they are outside the sphere
of competence granted to them by national law, so long as the organ was acting on behalf
of the state at the time.
 If not acting as a state organ at the time of the act or omission, no responsibility.
 Applies in equal measure to all government organs
Activities of private individuals

Some individuals can be regarded as organs of state (Soldiers, Police Men). Responsibility is
attributable to the state when private individuals do act on behalf of the state.

1. The acts of the individuals or groups can be attributable if they are empowered by
local law to act on behalf of the state.
2. Attribution to the state will arise if the group is acting on the instructions of, or under
the control of, the customary international law.
3. If in the absence of official authorities, private individuals actually exercise
governmental authority in circumstances that justified the exercise of such authority,
the activities can once again be attributable to the state.

Activities of revolutionaries

The state is not responsible for the actions of its rebellious subjects.

However, the conduct of an insurrectionist movement which becomes the new government of
a state shall be considered as an act of the state under international law.

If a rebellion results in the establishment of an independent state in part of the territory of an

old state, the acts of the ‘revolutionaries’ can be attributed to the ‘new’ state (this is precisely
the position with the states that have emerged from the former Yougoslavia).

~ It is possible for one state to be internationally responsible for the acts of

revolutionaries who are seeking to overthrow another state.

Activities of groups acting in another state’s territory

A state may be responsible in its own rights (primary responsibility) for failing to prevent
individuals or groups using its territory to commit wrongful acts against foreigners within the
territory.

 Nb: the same holds true if a state trains or supply those groups acting wrongfully à
Nicaragua Case: the ‘control and dependency’ test

 Primary responsibility

Because of a breach of some other international obligation, even though this obligation
arose out of the situation created by a non-attributable à compensation, reparation,
apologies, specific performance, re-establishement of the situation before the breach.

 Defenses:

‘circumstances precluding wrongfulness’ – customary law.

 ex: self-defence, force majeur

Art. 20-26 - list a number of ‘circumstances precluding wrongfulness’.

  Raised in all cases where it is alleged that a state has violated international law. If
defence works, the State is not liable.

 Danube Dam Case: ‘Treaty defences’ determine the initial validity of a treaty
whereas ‘responsibility defences’ determine the consequences if a valid treaty
was breached.

 The avaibility of any defence will depend on the Court’s interpretation of the
extent of the obligation that may have been broken, the standard of performance
required from the alleged malefactor and the peculiar facts surrounding the
alleged breach.

Treatment for foreign nationals

 commonest forms of responsibility

International obligations not to ill-treat foreign nationals present in its territory. If the state
violates this obligation è international responsibility to the state of whom the person is a
national.

~ Mistreatment of foreign nationals in the custody of judicial authorities;

~ Unlawful expropriation of foreign-owned property;
~ Failure to punish those individuals responsible for attacks on foreign nationals Direct
injury to foreign nationals by state officials;
~ Denial of justice.

 The appropriate standard of conduct in dealing with foreign nationals

 Developed world’s view = ‘international minimum standard’ è treat foreigners within

its territory by reference to a minimum international standard, irrespective of how
national law allows that state to treat its own citiwens. (Mostly used by developed
states)
 Contrary view = ‘national standard’ è responsible only if it fails to accord foreign
nationals the same standard of treatment afforded to its own nationals. (Mostly used
by developing states)

There is no real consensus about which standard is obligatory under customary law.

 ‘National standard’: responsibility arises only if there is discrimination against the

foreigners
 ‘International Standard’: regard to the fundamental human rights.

International law specifies whether the ‘national standard’ or the ‘international minimum
standard’ is appropriate for the type of case before the tribunal.
Legal consequences

 Principle rooted in customary law.

1) Obligation to make reparation

ex: apology, restitution or any combination thereof.
The commonest form of reparation is monetary compensation for the injury
suffered.

2) Countermeasures must be proportionate with any injury suffered.

 Must not comprise action which itself is generally unlawful.

3) Rise to a response from the international community as whole, as where

responsibility arises from a serious breach of a rule of jus cogen.

Tehran Hostage Case

Obligation on part of the offending state to make reparations for injuries caused to the
victim state under article 53 ICJ Statute

 Art. 45 VC on Diplomatic Relations – Immunities and obligation to protect continue

to exist even if diplomatic relations are broken off armed conflict.

 Admissibility of claims of state responsibility for the treatment of foreign nationals

 Nationality of claims

When a national suffers an injury at the hands of another state, his state of nationality
may take up the claim. International law takes the view that whether an individual is a
‘national’ is to be determined by the national law of the claimant state.

Nottebohm Case
Need for a ‘genuine link’ between that state and the individual/national who has
been injured. National must prove a meaningful connection to the state in question.

 However, the prima facie rule may be displaced if the individual has no real link
with the state of formal nationality but a close connection with the defendant state.

 The company is also a legal person and so entitled to diplomatic protection too.

~ If a separate and exclusive right of the shareholders is damaged by

governmental action, then the state able to pursue the claim is the state of
nationality of the shareholders.
~ When the company itself is injured, then the prima facie rule is that the state
of nationality of the company alone is entitled to make a claim. The state of
nationality is usually the state in which the company is incorporated; where
it has its registered office.
 ~ In exceptional cases, the state of nationality of the shareholders may be
entitled to bring a claim even though it is indeed the company itself that has
been injured.

The state of nationality of the shareholders (having separate rights) may bring a claim
if the company no longer exists as a distinct legal person; if the state of nationality of
the company is unable to protect the company, the state of nationality of the
shareholders may act; the state of nationality of the shareholders may bring a claim if
it is the state of nationality of the company that caused the injury in the first place.

The state of nationality of the company enjoys the right to bring a claim. Moreover,
such nationality will normally be determined by reference to the location of the
company’s registered office.

 Exhaustion of local remedies

Foreign nationals must utilise such measures as are available in the local law to
achieve a satisfactory vindication of their rights before their state of nationality can
successfully maintain a claim in international law. It ensures that international
tribunals are not engulfed by inter-state claims that could have been more easily and
more profitably dealt with at the local level.

If there is direct state-to-state responsibility, the matter is immediately on the

international plane.

 The Calvo Clause

When the foreign national agrees in advance to submit all disputes to the local law
and, furthermore, to forgo his right of diplomatic protection è prevent the state of
nationality bringing a claim of state responsibility at international law due to an
alleged waiver of such rights by the national.

 Expropriation of foreign-owned property

The taking of property by a state from the ownership of private individuals - This may
be a single asset as well as an entire industry.

 Includes any state activity that is destructive to the property rights of the
foreign national
 The acts of the expropriating state must actually cause the damage to the
foreign-owned asset. (There must be a causal link between the two).
If contrary to the principles of international law, host state is liable in
international law to the state of nationality of the injured party.

 Conditions for lawful expropriation

In 1962, the UN General Assembly adopted a Resolution on Permanent

Sovereignty over Natural Resources.
~ based on grounds or reasons of public utility and security
~ appropriate compensation (non-discriminatory)
 Expropriation is prima facie lawful, provided the conditions established by
international law are met.
Furthermore, case law suggests that a lawful expropriation must not be discriminatory
(shall be appropriate).

~ The Declaration on the Establishment of a New International Economic Order

~ The Charter of Economic Rights and Duties of States

These two were adopted in 1974 by the General Assembly and they both affirm the
legality of expropriation and go on to provide that the ‘appropriateness’ of compensation
is to be judged solely by reference to national law.

 The measure of compensation

According to the 1962 resolution, expropriation must be accompanied by ‘appropriate’

compensation.

 ‘Hull Formula’ = Compensation must be “prompt, adequate and effective”.

 adopted by industrialised states

Host state pays in a form of currency that can be readily used, it should reflect the full
value of the property taken, perhaps incorporating an element for future lost profits, and it
must be handed over within a reasonable time after the expropriation and, if not, interest
should be paid.

 Developing states objected this formula.

 Damages and remedies for unlawful expropriations

Discriminatory - in violation of a treaty obligation or because of a failure to provide

any compensation or failure to provide compensation up to the international standard
 not for reasons of public policy

A state claiming that the expropriation was unlawful may be entitled to different
remedies, including an enhanced monetary sum.

 The mathematics of compensation awards

 The discounted cash flow (DCF) approach

By reference to the value of the enterprise at the time of the expropriation in

terms of its projected revenues over the period for which the investment was
expected to last, minus revenue flow from its inception to that date.

 The net book value method

By reference to the paper value of the assets that the company holds. It minimises
the value of the enterprise as an operating ‘whole’ and therefore is not
universally favoured.
  The ‘going concern’ method (most likely to be adopted)

By reference to the physical and financial assets of the undertaking, but with the
addition of intangible values such as existing commercial contracts, goodwill and
commercial prospects.

 Does the fact of expropriation affect the value of the asset and thereby reduce
the compensation?

In most cases, the fact of expropriation will reduce commercial prospects for the
immediate future and may well disrupt cash flow, effective management, trading
performance and ability to attract new business.

 Lump sum settlements

By the payment of a lump sum to the host state of the nationals concerned è sum
then distributed by the host state to its nationals on a proportional basis.

 The internationalisation of contracts

Governed by the national law of one of the parties, usually the state in which the
investment is occurring. The contract is governed by national law and the individual’s
remedy lies in a normal action for breach of contract.

 Exceptions:

1. ‘Denial of justice’ so as to allow the state of nationality of the company to make

an international claim against the delinquent state.

2. It seems that contractual rights may be regarded as ‘property’ that may be

unlawfully expropriated.

3. ‘Doctrine of internationalisation’

(a) a contract could be internationalised where it made reference to a system of

law, other than the law of the state itself;
(b) where the contract provided for disputes to be settled by international
arbitration; (c) where the contract was within the class of ‘international
development agreements’ that involved long-term assistance to a state in an area
of essential economic activity.

Stabilisation Clause = a contractual term by which the state agrees that it will not
terminate the contract.

 Internationalisation precluded expropriation.

The concept of the internationalisation of contract may offer considerable protection to a

company contracting with a state. The contract is removed to the international plane and
 the existence of a stabilisation clause will make the state wary of taking precipitate action
if enhanced compensation has to be paid.

 Protection for private investors

Whether foreign investors can take any steps to safeguard their rights?

1. The company can attempt to internationalise the contract. Internationalisation may

increase the measure of damages and/or compensation.

2. The company can ensure that the contract does not contain a Calvo Clause.

3. The company can seek registration (i.e. nationality) in a state willing and able to
exercise its rights of diplomatic protection.

4. The company can seek to have the ‘prompt adequate and effective’ rule concerning
compensation incorporated into the terms of the contract.

5. The company can attempt to persuade its state of nationality to enter into a treaty with
the state in which it is investing. This should guarantee the terms of the contract and
any breach of the contract will then be a breach of the treaty.

6. The company could bring the matter within the regime of the International
Convention for the Settlement of Investment Disputes 1964, if its state of nationality
and the expropriating state have signed the Convention. This provides a formal
mechanism for the settlement of investment disputes between contracting states and
nationals of contracting states.
 The peaceful settlement of disputes

Chapter 10

What methods of peaceful settlement are available?

 Negotiation:

Enables the states concerned to reach a comprehensive settlement, having regard to all the
factors, of which international law may be one.

 Mediation and good offices

The person offering his ‘good offices’ will attempt to persuade the parties to negotiate.
Mediation is a continuation of this. A mediator is a person, again approved by both sides,
who takes part in the negotiations and whose task is to suggest the terms of a settlement
and to attempt to bring about a compromise between the two opposite views.

 Inquiry

Intended to establish the factual basis for a settlement between states. The parties to a
dispute will agree to refer the matter to an impartial body whose task is to produce an
unbiased finding of facts. It is then up to the parties to negotiate a settlement on the basis
of these facts.

 Settlement by the United Nations

1. General Assembly

~ Wide-ranging authority to make recommendations for the settlement of disputes.

~ Recommend measures for the peaceful adjustment of any situation.
 Not legally binding. It cannot impose a settlement on the parties.

2. Security Council

First, if all other means have failed, the parties to a dispute which is likely to
endanger international peace and security are under an obligation to refer it to the
Security Council.

Second, any member or non-member of the Organization may, without the parties’
consent, refer any dispute to the Council to see if it is likely to endanger the
maintenance of international peace and security.

 It cannot impose a settlement to the parties as its main task is to keep the peace
rather than to judge the rights and wrongs of a dispute.
 3. Other agencies

Deal with a variety of matters of a specific nature and they provide a forum for
discussion and an impetus to settlement in the same way as the General Assembly.

 Conciliation

Reference of a dispute to a third party, often a commission or committee, whose task is to

produce a report recommending proposals for settlement, not legally binding on the
parties, which form the basis for future negotiations.
 Middle ground between inquiry and arbitration

 Settlement by regional machinery

 Evidently suitable for the resolution of local disputes

1. The Organization of American States

2. The African Union
3. The Caribbean Community and Common Market
4. The World Trade Organization (WTO)
5. The European Court of Human Rights
6. The Central American Court of Justice
7. Inter-American Court of Human Rights

Three general, universal and permanent judicial institutions for the settlement of disputes:

 International Court of Justice

 Permanent Court of Arbitration
 International Criminal Court

 Arbitration

‘A procedure for the settlement of disputes between states by a binding award on the
basis of law and as a result of an undertaking voluntarily accepted’.
 States must consent beforehand to the exercise of jurisdiction by the arbitrators

The Permanent Court of Arbitration (PCA) provides an institutionalised procedure for

the settlement of disputes by arbitration. An important function of arbitration, and one
which the ICJ cannot undertake, is to settle disputes between states and other bodies
having international personality.

Definitions of arbitration:

 Procedure for the settlement of a legal dispute – a settlement is achieved by the

application of this law to the facts of the case.

 Awards – legally binding on the parties.

  The parties may choose the arbitrators or judges – parties to arbitration have
direct control over both the composition of the panel and its procedure.
Added advantage that states are reassured by the fact that they can nominate
arbitrators of their own choice.

 The International Court of Justice

The ICJ makes judgments and gives advisory opinion and is often thought of as the
primary means for the resolution of disputes between states. It is gaining in stature the
longer it operates.

Art. 31 ICJ Statute - composed of 15 judges of different nationalities, elected by the

General Assembly and Security Council. Any party to a dispute which does not have a
national as a member of the Court may appoint an ad hoc judge, with equal powers, for
the duration of any particular case in which it is involved.

 Access to the Court

Art. 34 ICJ Statue - ‘Only states may be parties in cases before the Court’
 Consequently only states may be parties in contentious cases

1) The ICJ is one of the principal organs of the UN and its Statute is an integral
part of the Charter. Consequently, all members of the UN are parties to the
Statute and therefore have access to the Court.
2) Non-members of the UN may be parties to the Statute in its own rights.
3) Art. 35 ICJ Statute - Non-parties to the Statute may have access to the Court
under special conditions laid down by the Security Council.

Corfu Channel Case

States must meet preponderance of evidence standard to prevail before the Court.

 Admissibility in contentious cases

The ICJ has an inherent power to exercise jurisdiction for it must safeguard the judicial
function.

Alleged failure to exhaust local remedies, under interference with the domestic affairs of
states, lack of legal subject matter, lack of the right of diplomatic protection over the
injured persons and undue delay have all been alleged as grounds on which the Court
should declare an application inadmissible.

 Interim measures of protection

An international tribunal’s order to prevent a litigant from prejudicing the final outcome
of a lawsuit by arbitrary action before a judgment has been reached.
 If the case is urgent, the Court can do a provisional judgment.

Art. 41 ICJ Statute - The Court has the power to indicate any provisional measures
which ought to be taken to preserve the respective rights of either party.
  The ‘indication’ of provisional measures can involve a binding obligation to comply
with the Court’s order and this makes them effectively legally binding.

The Court is not bound to order interim measures.

Lockerbie Case

o Content: Libya applied to ICJ for interim measures of protection

o Reason: alleged threats made by UK and USA as a response to allegations that
Libyan nationals were responsible for the destruction of the aircraft.
o Outcome: Security Council adopted enforcement measures during the hearing
of Libya’s application in the Court after determining that the matter fell within
Art. 39
 As a result Libya agreed to hand over the suspects for trial in the
Netherlands

Court refused interim measures

Binding resolution (Art.39) - Security Council can assume paramount

responsibility for dispute settlement in such cases as it deems appropriate

 Jurisdiction in contentious cases

A state cannot be compelled to undertake the settlement of a dispute. The requirement

of consent is a strict one. The Court has the power to determine the limits of its own
jurisdiction and its decision in this regard is binding, independent of the consent of the
parties.

 Acquisition of jurisdiction by the ICJ

 Consent ad hoc
Express form of consent, given by the parties at the time of a particular dispute
and in respect of that dispute alone.
The usual method is the ‘compromise’ - avoids doubt and presents a defined
issue to the Court.

 Consent post hoc (forum prorogatum)

Possible that the Court may be invested with jurisdiction subsequent to the
initiation of proceedings by one of the parties. This may occur if, while the Court
is considering the unilateral application of one state, the other expressly or
impliedly signifies its consent to the jurisdiction.

 Consent ante hoc – treaties

Many treaties contain clauses granting the Court jurisdiction over the subject
matter of the treaty. è form of ‘compulsory’ jurisdiction.
  Consent ante hoc – the Optional System – Art.36(2)

By means of a unilateral Declaration of Acceptance, deposited with the UN

Secretary-General. Optional in the sense that states may become parties to the
Statute without making Declarations of Acceptance.

Form of compulsory jurisdiction as the state is bound by its acceptance in respect

of future disputes.

The Optional System provides a powerful and effective method by which the
Court may gain jurisdiction in advance over disputes between states.

 Reservations under the Optional System

 ratione temporis = The most common reservations are those made, i.e. those
dealing with the time frame in which disputes must arise before jurisdiction exists.
 ‘Automatic’ or ‘self-judging’ reservations = reserve a state’s competence over
domestic matters as before, but add that the state itself is to be the sole judge of
what is a domestic matter.
 CRITICISM: automatic reservations are unlawful and invalid because they are
contrary to art. 36(6) of the Statute which provides that it is the Court which has
the power to determine the limit of its own jurisdiction (Judge Lauterpacht)

Reservations must be interpreted ‘in a natural and reasonable way, with appropriate
regard for the intentions of the reserving state and the purpose of the reservation’.

 The principle of reciprocity

The Optional System applies only between participating states à States have to make a
Declaration before they can rely on Art.36
removes the danger of abuse by those wishing to avail themselves of the Court for a
particular case, but are not prepared to participate fully in the ‘consensual bound’
which is created.

The Court has jurisdiction over the areas common to both states’ Declarations.

 Transferred jurisdiction

Procedural device intended to ensure that the ICJ lost none of the jurisdiction of the
PCIJ simply by reason of its reconstitution as an organ of the UN instead of the
Leagues of Nations.

Art. 37 ICJ Statute = the treaty containing the jurisdictional clause must be in force
and all parties to the dispute must be parties to the ICJ Statute.

 Intervention

 Art. 62 = A state may request permission to intervene if it considers it has an

‘interest of a legal nature’ in a dispute before the Court.
  Art. 63 = A state has the right to intervene in proceeding before the Court if the
dispute concerns the construction of a treaty to which it is a party.

1. The state requesting intervention bears the burden of proof to demonstrate

convincingly that it has an interest of legal nature which may be affected by
the dispute.
2. It needs only to demonstrate that its legal interests may be affected. The
opposition of either or both of the disputing states is not a bar to permitting
third party intervention.
3. The intervener does not become a party to the proceedings. The purpose of
intervention is to inform the Court that the legal rights of the intervener may
be prejudiced.
4. The existence of a jurisdictional link between the intervener and the disputing
states is not required.

 The future of the Court

The use of the Court in contentious cases has not been as widespread as originally
intended.

 The Court and the Security Council

The Court was the principal judicial organ of the UN and it was not enough to deny
jurisdiction that the Council was fulfilling its own functions in parallel.

Advisory Opinion

 On ‘any legal question’ at the request of any body duly authorised by the UN
(Chapter IV of the Statute and Art.96 of the Charter)

 May be requested by the General assembly, the Security Council, ECOSOC, the
IAEA and all the specialised agencies.

 Not binding in law, but in practice if they concern the rights and duties of states,
generally they are acted upon.

 Advisory Opinions may deal with a wide variety of issues, and may have a significant
impact on the rights and duties of states.
 The use of force

Chapter 11

 The primary obligation not to use force has attained the status of jus cogens 

 Unilateral Use of Force = a decision to use force made by an individual state

 Collective Use of Force = a decision to use force made by the community as a whole

There are also two kind of use of deliberate military action by one state against another:
“direct” or “indirect”.

THE UNILATERAL USE OF FORCE

The law before 1945

 The Just War Doctrine:

Developed by St. Augustine and Grotius, it stipulated that war was illegal unless
undertaken for a “just cause”
A just cause encompassed a variety of situations, but essentially involved a wrong
received or a right illegally denied.

There was no objective legal test of a state’s right to use of force. Every State had a
perfect legal right to resort to war for any reason.
 International law regulated the conduct of war, did not interfere with a state’s right to
pursue it.

Going to war in ‘self-defence’ exempted a state from even the minimal restrictions of the
Covenant of the League of Nations.

In 1928, General Treaty for the Renunciation of War, also known as the Kellog-
Briand Pact = 1st attempt to legally ban war

 In the period immediately preceding the Charter:

The right of states to use armed force was regulated by a mix of customary and treaty law.
In customary law there was no general prohibition on the use of force as such.

By 1945, self-defence had emerged as an exception to any prohibition and customary law
had begun to lay down the conditions for its lawful exercise.

Such matters as reprisals, rescue of nationals and humanitarian intervention were seen as
legitimate uses of ‘force of short war’ or, alternatively, if all force was outlawed, as
legitimate exceptions to the general ban itself.
The law after the UN Charter

 Primary purpose of the Charter – art. 1: ‘suppression of acts of aggression or other

breaches of the peace’.

 Art. 2(4) UN Charter: stipulates general prohibition of the unilateral use of force.

CASE: Nicaragua vs USA: This general prohibition does not exist in treaty law alone.
The ICJ in that case made clear that a general ban on the use of force exists in customary
law also, running parallel to the Charter.

 Two interpretations of the relevant legal principles:

 Permissive:

Charter did not fundamentally change the direction of international law = the UN
did not really succeed
Reference may be had to pre-1945 rules = flexible use of law
The use of force is interpreted more freely – to allow a state to better protect itself

 Restrictive:

The Charter brought about a radical alteration in state’s rights = the UN

succeeded
 Art. 2(4) lays down a total and uniform ban on the unilateral use of force = strict
use of law
 The use of force can only be used in the most exceptional cases. Generally, this
is the commonly used approach

 Self-defence

Self-defence as an ‘inherent right’ dates back only to the time when war generally
became unlawful. If the crisis can be avoided by diplomatic representations, or if the
‘danger’ is too remote, self-defence is not justified

The customary right of self-defence permits the use of force in any of the following
circumstances:

1. In response to and directed against an ongoing armed attack against state

territory
2. In anticipation of an armed attack or threat to the state’s security
3. In response to an attack against state interests: territory, nationals, property
and rights guaranteed under international law
4. In response to acts of economic aggression and propaganda

Caroline Case

o Necessity – use of force must be necessary because the threat is imminent and
pursuing alternatives is not an option
o Proportionality – response must be proportional to the threat
Customary Law - the use of force is authorized in various situations, which may go
beyond the rights of the Charter.
 Contrast: restrictive approach = argues that this wide right of self-defence is no
longer available.

Charter art. 51 and art. 2(4) = conclusion is reached that the only right of self-
defence

Old customary law is superseded with the practical result that a state may resort to
self-defence ‘if an armed attack occurs’ but not otherwise.

o The right to use of force is not available in anticipation of an attack, or when

the threat is non-violent or to protect anything other than State territory.
o Most states believe that self-defence should be an exceptional right, available
in exceptional circumstances. That exceptional situation should be the
relatively objective and relatively easily established scenario of an armed
attack against state territory à Principle of ‘proportionate countermeasures’.

 Other legitimate uses of force

 Collective self-defence

It is lawful in response to an armed attack (self-defence) by two or more states

The latter interpretation of collective self-defence is the basis for military alliances
such as NATO à all members of the alliance will use force if any one of them is
subject to an unlawful use of force.
 The attacked state must ‘request’ assistance before action by others in its aid can
be lawful.

 Invitation and civil wars

A state may give permission for the use of force (by another state) on its territory for
any lawful purpose, as where a state seeks to secure the safety of its nationals.

Under international law, civil war is perfectly lawful – once a civil war is in progress,
no other state may respond to a request for military assistance from either party.
 In a civil war there is no competent authority under international law to invite
assistance from other states – unless it is for self-determination (exception)

 The use of force

Art. 2(4) - The state may claim that the use of force is lawful because it does not
violate the precise terms of the article

 Reprisals (an act of retaliation)

The use of force in reprisals regards violence as the proper legal procedure for the
justification of rights illegally denied or as the proper method for inflicting
punishment for harm suffered.
 Art. 2(4) has outlawed armed reprisals, especially since the Charter was intended to
provide more effectively machinery for the peaceful settlement of disputes.
International community is largely against any expansion in self-defence and it is
unlikely that they would accept its de facto merger with the doctrine of reprisals.

 Protection of nationals at home and abroad Terrorism and the use of force

Involves the use of force on the territory of another state, without the permission of
the territorial sovereign, in order to rescue nationals who are in serious danger

If the use of force is lawful (which is unlikely) customary practice has identified four
conditions:

1. The ‘host’ state must be unable or unwilling to protect the nationals.

2. The nationals must be in serious last resort.
3. force must be the weapon of last resort
4. the acting state may use only such force as is necessary and must vacate the
territory of the ‘host’ state ASAP

It is possible to argue that this is not a use of force ‘against the territorial integrity or
political independence’ of the states and so not prohibited by art. 2(4), at least where
the intervening state does withdraw promptly

Regarding Terrorism & the protection of nationals: there no law that permits a
state to take unilateral action

 Humanitarian intervention (Improving peoples’ lives and reducing their suffering)

‘Doctrine’ of humanitarian intervention: alleged general right to intervene with

force for humanitarian purposes without the consent of the territorial sovereign

Certain ‘conditions’ have been proposed for the lawful exercise of this ‘right’:
o intervention must be authorized by a competent international organization
o the use of armed force is legitimate only in cases of extreme deprivation of
fundamental human rights (genocide)

It is often necessary to remove the offending government, or at least seriously

compromise its freedom of action, in order to stop the violations of HR à goes against
the ‘political independence’ of the target state = counter to the aim of the UN Charter

 Self-determination and national liberation movements

Has been claimed as legitimate on the ground that it furthers the principles of the
Charter. Other states may assist politically and economically in the fight for self-
determination, but not militarily.

The issue (of self-determination and/or liberation movements being legitimate) may
arise in three ways:
1. ‘Colonial’ power use of force – to protect the rights that are already in place.
 2. National liberation movements use force to overthrow the ‘colonial’ power and
thereby achieve self-determination.
3. If it is an internal affair à it becomes a case of civil war = International law
does not prohibit internal conflicts and it should refrain from categorizing the
national liberation movement’s use of force as illegal.

South West Africa Case

Continued presence of South Africa in Namibia was illegal, and South Africa
should withdraw its military troops immediately.

 Namibia had right of self-determination.

 Hot pursuit

Generally such action was believed to be an ‘aggression’ or contrary to Art. 2(4). It

is reasonably clear that international law does not accept the principles of land-based
hot pursuit on any of the grounds put forward (it is only permitted on high-seas).

It is extremely doubtful whether a right of hot pursuit across land borders exists in
international law, although the local courts of the state resorting to force might take a
more lenient view for the purposes of their own legal system.

THE COLLECTIVE USE OF FORCE

The United Nations

 The maintenance of international peace and security

Art. 39: if the Security Council determines that there is any ‘threats to the peace or
act of aggression’ it may take such measures as are specified in Art. 41 and 42.

The Council itself is the final judge of when a problem falls within art. 39, with the
possibility of review by the ICJ

By using different powers, and by following different procedures, the Security

Council has been able to authorize the use of armed force against a state as a means of
restoring international peace and security

Collective security is possible but not in the way envisaged originally by the drafters
of the Charter.

o States are permitted to use force (on request of the Security Council!)
o The Council has developed a practice whereby it permits, requests or
authorizes states to use force to restore international peace and security, but it
does not require them to do so.
  Collective security and collective self-defence

Self-defence under art 51 may be taken only ‘until the Security Council has taken
measures necessary to restore international peace and security’
 this does assume that the Council is able to restore international peace and security

Purposes of self-defence and collective security are different.

o Self-defence is an emergency response to an emergency situation, but it also

implies that the ‘defender’ is entitled to use force as long as it is threatened
and for so long as its territory remains occupied.
o Collective security is concerned with the maintenance of international peace
and security and this may or may not mean the complete vindication of the
rights of the state that was unlawfully attacked.

Goals of collective security and self-defence are neither practically nor legally identical.

 The diverse powers of the Security Council

Able to impose all manners of (last defence) obligations on a (guilty) state after it has
been (controlled) by enforcement action.
The power of the five permanent members has been enhanced by these developments
= criticism that the Council is now too narrow in ideology and outlook.

 The General Assembly

The widespread use of the veto in the Security Council led the General Assembly to
play a more active role in the maintenance of international peace and security.

The assertion by the Assembly of competence in security matters was a great step
forward and the significance of the first peacekeeping force is considerable.

Regional organizations

Art 53 of the Charter: the Security Council may utilize regional organizations, such as the
OAS, OAU, and NATO, for ‘enforcement action’.

 Enforcement Action = armed action against a ‘target state’ that has committed some
prior illegal act and where the community wishes to compel observance of some
international obligation.

Peacekeeping

Both the Assembly and the Council have peacekeeping abilities; in recent years the Council
has monopolized these functions.

 Use of force = generally unlawful – international law must permit states to use force
whenever their vital interests, their security or their international rights are at risk.
The strict approach to the use of force is probably the better view on an objective basis,
although this does leave nationals, ‘human rights’ and ‘democracy’, often unprotected in the
face of a determined aggressor.

Nicaragua vs USA

 Declarations under the optional system are to be regarded as treaties in international law
 But this does not make them treaties in law
 Showed that the concept of ‘jus congens’ is established in international law

Conditions for customary law

 The existence of customary law can be identified by actual state practice and opinio juris
of the states.
 However, the practice does not have to be in absolute conformity with the rule. The
conduct of states should in general be consistent with the rule and state conduct
inconsistent with the rule should generally be treated as breaches of that rule.
 Opinio juris can be found in, amongst others, General Assembly resolutions, statements
of the state representatives and in the conclusion of treaties covering the same aspects as
customary law.

Use of force
 The prohibition on the use of force is considered to be a rule of jus cogens under
customary law, since it is one of the most fundamental obligation of international law.

Customary law and treaties

 A state is still bound by customary law if it is a party to a treaty containing the same
obligation, i.e. the state is bound by both the treaty and by custom, at least when the law
at issue is a rule of jus cogens.

Responsibility of a state for the activities of groups in another state’s territory

 Control and dependency test: for the state to be responsible for activities of groups in
another state’s territory there needs to be a degree of direct control: the groups are agents
of the state and dependent on it. It is not sufficient if the state only encouraged, supported,
supplied, trained, assisted with planning, financed or organised the group, although this is
considered to be an unlawful use of force which can only give rise to “proportionate
countermeasures”.

Declaration of Acceptance of the jurisdiction of the ICJ

 If a state deposits a Declaration of Acceptance, which is voluntary, it is a binding legal
obligation for the state that can only be altered according to its own terms.

Declaration of Acceptance and principle of reciprocity

 The principle of reciprocity is only concerned with the substance of the Declaration, and
not with their procedural aspects (e.g. provisions of termination of the Declaration).

Self-defence
 The right of individual self-defence should be narrowly interpreted, i.e. that it is only
available in the event of an armed attack. Not all uses of unlawful force = armed attack.
 Human Rights

Chapter 12

Law of human rights = individuals may be under certain international duties for which they
can be made responsible before national and international courts (war crimes, crimes against
the peace, crime against humanity and piracy).
The greater part of the law of human rights is derived from treaty and custom.

The law of human rights is inspired by principles of ‘morality’,

‘justice’, ‘ethics’ and ‘dignity of Mankind’.

The role and nature of human rights law

Cultural relativism = the nature or substance of a ‘human right’ can sometimes vary
according to the political, social or economic orientation of the state or group of states in
which it is said to exist

The ‘protection of human rights’ as an abstract moral or legal concept will do little to
enhance the everyday existence of even one individual unless it is firmly rooted in the day-to-
day experience of the people who are to be protected and of the governments who are
supposed to be doing the protecting.

When talking about the law of human rights, we must be sure that the substance of what is
being promoted resides in legal obligation and not only in moral principle.
Many moral principles concerning human rights have been transformed into a series of
legal obligations.

Immoral and illegal

In practice, the bulk of human rights law operates to oblige a state to refrain from causing
harm to its own nationals or other persons within its territorial jurisdiction. In this sense, the
law of human rights is an exception to the absolute and exclusive territorial jurisdiction which
a state otherwise possesses.

Furthermore, any denial of the human rights of nationals of other states may give rise to a
further claim of state responsibility for injury to aliens. A state may now be internationally
responsible for acts done in its own territory to its own citizens.
 Human rights law is one area where the state cannot rely on the reserved domain of
‘domestic jurisdiction’.

The purpose of the law of human rights is to ensure that individuals

are protected from the excesses of states and governments.

Until 1945, international law was generally concerned only with the rights and duties of
states. Protection of human rights is one way in which international law can defeat the
excesses of sovereign states.
The development of the law of human rights

The protection of human rights has been one of the primary purposes of United Nations
 prior to the UN Charter; individuals were not a major concern of international law

1948, the General Assembly adopted the ‘Universal Declaration of Human Rights’.
- Contains a list of economic, social, cultural and political rights.
- Precise effect was to urge states to establish procedures for the future protection of human
rights, and not to create binding legal obligations.
- Could not place states under an immediate binding obligation to protect them.

The adoption of the Declaration illustrated that there was agreement in principle
about the importance of human rights, as well as consensus
as to the kind of rights that should be protected.

Development into Customary Law

It is a standard by which the behaviour of states, ethnic groups, individuals and even
multinational corporations is judged.

Generations of human rights

- 1st generation: Civil and political rights that are now at the core of most human rights
treaty regimes (e.g. the right to life, the abolition of slavery, the right to a fair trial, the
prohibition of torture and the right to recognition before the law).

- 2nd generation: Social and economic rights (e.g. the right to work, the right to social
security, the right to an adequate standard of living and the right to education).

The enforcement mechanisms for 2nd generation rights tend to be more flexible and
less powerful than those available to the individuals claiming a violation of a 1st
generation right.

- 3rd generation: They include very general concepts (e.g. the right of development, the
right to a protected environment, rights of peace and the right of self-determination).

These are rights which belong more appropriately to groups rather than individuals.

The protection of human rights under the United Nations

The effect of the Universal Declaration of Human Rights generated a general principle of
customary international law to the effect that states were bound to respect the human rights of
persons within their jurisdiction.

The general rule to respect human rights is now a rule of ‘jus cogens’.

 The International Covenant on Civil and Political Rights 1966

 The International Covenant on Economic, Social and Cultural Rights 1966
Together, these two international Covenants form a relatively comprehensive code of
universal human rights and provide for some level of enforcement against delinquent states.

The International Covenant on Civil and Political Rights 1966

A party to the Covenant undertakes ‘to respect and to ensure to all individuals within its
territory and subject to its jurisdiction the rights recognized in the present Convention, within
distinction of any kind’.

This Covenant is a legally binding treaty and the state-parties are legally bound to give
effect to its provisions. Thus, a violation of this Covenant gives rise to international
responsibility.

 The effect of the Covenant is to provide a framework for the protection of those civil
and political rights

Unfortunately, the system of enforcement is not really designed to provide a remedy for
individuals in concrete cases.
 On becoming a party, a state is automatically bound by Art. 40 to submit periodic reports
(every five years) to a ‘Human Rights Committee’.
 The Human Rights Committee is empowered to issue ‘General Comments’ discussing at
large compliance with the Covenant.

Art. 41 - Procedure of inter-state complaints, whereby a party may declare, at its option and
on a basis of reciprocity, that it recognizes the competence of the Human Rights Committee
to receive complaints from other states.

1. Subject to exhaustion of local remedies and after a prescribed period of direct negotiation
2. If an inter-state complaint is referred to the Committee, it will attempt to mediate in order
to achieve a settlement.
3. If it is not possible, the Committee may, with the further consent of the parties, refer the
matter to a Conciliation Commission.
 The report of this body is not binding. It may, of course, result in political pressure to
remedy the alleged violation of human rights.

 Optional Protocol to the Covenant provides for the possibility of individual

complaints to the HR Committee in respect of personal violations of human rights.

CRITICISM 1 = a more comprehensive system of enforcement for specific violations

of the human rights of particular individuals would have been preferable.

CRITICISM 2 = The Covenant regime allows a state to appear to be protecting

human rights, whereas in fact it may be committing the most serious violations.

The gulf between the apparent and real nature of a state’s obligations under the International
Covenant has led some commentators to question whether it would have been better to have
established fairly strict enforcement machinery for International Covenant that would have at
least identified those states unwilling to do anything practical about human rights.
The International Covenant on Economic, Social and Cultural Rights 1966

This is the counterpart of the other Covenant.

This second Covenant does impose binding legal obligations on the parties to it.

Art. 2 - Each party ‘undertakes to take steps, individually or through international assistance
and co-operation, especially economic and technical, to the maximum of its available
resources, with a view to achieving progressively the full realization of the rights’.

 This Covenant is designed to promote economic and social welfare, not to hinder it by
placing states under obligations that prevent widespread economic and social reform.

States are under an obligation to submit reports every five years to the Committee on
Economic, Social and Cultural Rights (CESCR), effectively a body of 18 members operating
under the auspices of the UN’s Economic and Social Council. In contrast with the first
Covenant, the examination of these reports is often a political rather than a legal exercise. In
consequence, the enforcement machinery is not likely to discover any serious breaches of the
Covenant.

ECOSOC and the Human Rights Commission

In 1948, ECOSOC made a significant contribution to the development of human rights law
by establishing the Human Rights Commission. This Commission is primarily a political
body rather than a judicial body. It does have jurisdiction to investigate allegations of
widespread violations of human rights.
Reports of the Commission are not binding in law and there is no enforcement mechanism.

Furthermore, the Commission is directly involved in the development of multilateral treaty

regimes dealing with particular areas of human rights.

The Commission altered its procedure so as to enable it to investigate individual complaints

submitted to it. This is done under the auspices of its Sub-Commission on Prevention of
Discrimination and Protection of Minorities. This Sub-Commission is empowered to make
recommendations to the Human Rights Commission.

The International Convention on the Elimination of All Forms of Racial Discrimination

1966

This international treaty establishes a specific regime in the field of racial discrimination.

States are under an obligation to submit reports to a Committee on the Elimination of Racial
Discrimination. These are examined and general recommendations are made. By signing the
Convention, each state automatically accepts the possibility of an inter-state complaint. The
Committee may also refer the matter to the Conciliation Commission. There is also an
optional system of individual complaints.
UN agencies and other multilateral instruments

A number of specialized agencies and subsidiary organs of the UN are also concerned with
the promotion and protection of human rights.

- The International Labour Organization

- The UN Educational, Scientific and Cultural Organization (UNESCO)
- The UN Relief and Works Agency (UNRWA)

There are, in addition to these bodies, many other treaties covering specific human rights
matters.

- The 1948 Convention on the Prevention and Punishment of the Crime of Genocide
- The Convention against Torture
- The 1979 Convention on the Elimination of All Forms of Discrimination Against Women
- The 1972 Convention on the Suppression and Punishment of the Crime of Apartheid

The European Convention on Human Rights and Fundamental Freedoms 1950

In 1950, the member states of the Council of Europe signed the ECHR. The Convention
represents a comprehensive statement of the civil and political rights believed to be common
to the peoples of Europe.

The usual way in which a contracting party will meet its obligations will be to ensure that its
national law does not violate the rights protected in the Convention. For this reason, many
states have formally incorporated the Convention into their national law, often as an element
of their constitution.

A breach of the Convention entails international responsibility. This may mean that the state
concerned in obliged to bring its national law into line with the Convention.

The application of the ECHR was overseen by three bodies:

- The European Commission of Human Rights

- The Committee of Ministers
- The European Court of Human Rights

Eleventh Protocol to the Convention (1998) = the Commission is abolished and the role of
the Committee of Ministers much reduced. The aims were to simplify the procedures by
which a case may be brought before the Court, to strengthen the judicial elements of the
system and to speed consideration of specific cases.

Access to the Court

Failure to respect the Convention entails international responsibility. If a breach of the

Convention is suspected, either another state or the individual directly affected may bring the
alleged delinquent state before the Court.
The procedure for bringing a claim

The restructuring of the Court into Committees, Chambers and the Grand Chamber is an
attempt to streamline the process by which claims can be made and assessed.

Not all claims will be ‘admissible’, and under Art. 35 both individual and inter-state
complaints can be declared inadmissible if domestic remedies have not been exhausted.

The procedures of the Convention have done much to remedy general defects in the
national law of the contracting states, as well as providing individuals with concrete
remedies for specific violations of their human rights.

Other European initiatives

There are the human rights provisions of the parties establishing the European Communities
and the European Union and these can have ‘direct effect’ in the national law of the member
states.

The western hemisphere: American Convention on Human Rights

In 1948, the 9th Conference of American States adopted the American Declaration of the
Rights and Duties of Man.
Although it contained no enforcement provisions, this acted as an impetus to human rights
law in America.

In 1969, the Organization of American States adopted the American Convention on Human
Rights including provision for an Inter-American Court of Human Rights.

African Charter on Human and Peoples’ Rights 1981

In 1981, the 18th OAU Assembly of Heads of State and Government adopted the OAU
Charter on Human and Peoples’ Rights.

State-parties ‘shall recognize the rights, duties and freedoms enshrined in this Charter and
shall undertake to adopt legislative or other measures to give effect to them’(Art.1).

The Charter does cover a wider range of rights than its European counterpart, dealing with
political, civil, economic, social and cultural rights.
 The Charter does not always emphasize individual rights, but stresses certain community
values.

Success and failure

The effective protection of human rights by a regional code is necessarily dependent upon a
cultural, economic and political homogeneity among the participating states that simply may
not exist. The states of Europe by and large do share a common heritage.

International law has now the potential to help individuals in cases where their national
law may be ineffective or may even be the instrument of their oppression.