International Law Semester 1

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International Law semester 1
International Law (University of Cape Town)
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INTERNATIONAL LAW:
1. Chapter 1: INTRODUCTION
International law is general taken to be a system of rules governing relations among states. The regulation of
international relations has its origins in antiquity. It is a unique, self-sustaining system. A feature clearly
distinguishing international law from nearly all systems of municipal law is its primary source in custom.
Custom operates to produce binding norms from certain accepted actions.
Natural law = what nature instilled in all animals (such as the will to procreate and to care for the young),
together with what natural reason had established among all humans. A major difference between natural law
and what was then called the law of nations was that natural law stated that all men are free and the law of
nations ruled that slavery was permitted.
The system of International Law in the form we know today began in 1648, when the powers of Western
Europe put an end to the war of thirty years in Germany. In spite of the growing diversity of international law
after this date, international law in the nineteenth century continued to be determined by the interests of the
Western Powers.
It was soon believed that the only solution to war was an international organization with some form of
supranational authority  Charter of the United Nations. Largely because of the UN, international cooperation
has become the norm, not the exception, whether in matters of peace and security, human rights, the
environment or the more prosaic (straight-forward) aspects of interstate relations.
In less formal terms, however, the growing volume of international regulation is largely as a result of the
phenomenon of globalization = international integration, cooperation and interdependence, processes that
have been driven mainly by the imperatives of national economies. Globalization is a process that is constantly
evolving in response to external pressures, and these pressures have an inevitable impact on international law.
Hegemonic globalization = the spread of general or universal standards, which are all too often merely a guise
for Western domination and the economic exploitation of subordinate nations and cultures.
Counter-hegemonic globalization = the laws that arise to protect such matters as indigenous knowledge and
minority rights.
International law must find a balance between hegemony and undiscriminating acceptance of other normative
orders.
Why do South African lawyers need to study International Law?
International Law is a fundamental part of the South African legal system in general. In many sections of the
South African Constitution, International law is given a prominent role: section 39 and 231-233.
International Law is given a prominent role in the domestic law sphere in South Africa. International Law has
played a really important role in South African courts. You cannot fully understand South African law without
understanding International Law.
International Law played a very important role in the fall of the Apartheid regime in South Africa. International
opposition was based, in large, on International Law. Thus, it played a crucial role in International Support
against the Apartheid regime.

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What is International Law?
• International Law can be said to be a set of rules and principles that bind States in their relations with one
another. The important aspect is that these are rules that bind states in their interaction with other states.
• It can concern an almost infinite variety of issues. It concerns human rights, trade, the environment, out of
space, territorial boundaries, prosecutions for international crimes.
• International law can be general (applies to every state in the world) and regional law (applies only within a
particualr region of the world).
• Most domestic legal systems have a legislature, excutive and judiciary. The international system, on the
other hand, is very different. There is no central legislature.
• Non-hierarchical
• Based on State consent
Domestic Law
Governmnet
Enforced by police and judiciary
Natural and Legal Persons
Domestic law states, there is a central government that is responsible for making the law, which is enforced by
the police and judiciary.
International Law
State A State B State C
International law operates on the basis of a horizontal, decentralised system of authority. The rules that bind
states are created by the states themselves. The people that make the rules are also the people that are bound
by the rules of International Law. Every state in the world has the opportunity to participate in the creation of
International law.
Thus, there is a stark contrast between the horizontal, decentralised system of law (International) as opposed
to a vertical, centralised system of law (Domestic).

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Sources of International Law
The sources of International Law are listed in Article 38(1) Statute of the International Court of Justice:
a. International conventions (treaties e.g. UN Charter – simlar to a contract)
b. International custom (customary International law – based on what states actually do in their practice)
c. General principles of law recognised by civilised nations
d. Judicial decisions and teachings of the most highly qualified publicists
* The most important sources are treaties and customary international law.
Enforcement of International Law
What happens if a rule of international law is breached? There is no international police force or army to
enforce International Law. Thus, what avenues actually exist? Instead of there being an army or police force,
the states also have to be the enforcers of international law. Thus, it is up to the states to obtain some sort of
remedy.
1. State Responsibility – when a state breaches international law, the victim can pursue a claim to correct
the action that breached the international law. E.g. if SA had a treaty with Zimbabwe that South Africa
breached, then SA would incur international responsibility. The claim is then against South Africa, and
not against an individual (such as the President).
- Civil law claims, not criminal.
- State vs State, not against an individual.
2. Courts
- International Courts – the main court is the International Court of Justice. They can deal with any
question.
- Foreign Domestic Courts – this can be done to a limited extent. Claims of state imunity often prevents
cours from hearing matters.
- Precedent
3. Remedies
- Civil law remedies – compensation; restitution; apologies
- Non-forcible counter-measures
- UN Security Council sanctions – can take measures when states have breached International law. The
Security Council has special rights to impose sanctions.
- Use of force?
International Organisations
States are the prime subjects in International Law. However, International Organisations also play a prime role.
They act as places where states can come together to discuss international issues. They act as places where
International Law is made and enforced.
a) The United Nations

- Only institution in the world where every state is a member.
- Security Council; General Assembly; International Court of Justice; Secretariat; Committees
b) Regional organisations
- E.g., SADC; African Union; European Union

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c) Judicial organisations
- ICJ; ICC; African Court of Justice; European Court of Justice
d) Expert bodies
- ILC; Treaty bodies (e.g., UN Human Rights Committee)

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2. Chapter 2: SOURCES OF INTERNATIONAL LAW
1. Hierarchy of Sources:
Notwithstanding its early origins, international law has a relatively short history as a separate legal discipline. It
began in the nineteenth century, at a time when legal positivism dominated common-law jurisprudence.
Hence, as a product of the era, the validity of international law was judged not by the content of the rules but
rather by a purely formal requirement: the commands of a political sovereign.
A central issue in international law is the source of its legal rules. The three main sources are listed in
paragraphs (a) to (c) of Article 38 of the Statute of the International Court of Justice (ICJ):
1. “The Court whose function is to decide in accordance with international law such disputes as are submitted to it,
shall apply:
(a) International conventions, whether general or particular, establishing rules expressly recognised by the
contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognised by civilized nations. “
Art 38 is accepted as a definitive statement of international legal sources, although its validity is questionable
in at least three respects:
o 1. There is no clear doctrinal authority for its provisions – its authority rests on acceptance by
writers and state practice
o 2. The idea of states creating law through some type of tacit contract is notional rather than
actual – so there might not be actual consent, which is the foundation of IL
o 3. The arrangement suggests that the courts must apply them according to a strict hierarchy
o This understanding conflicts with the principle that customary rules of the ius cogens override
any treaty provisions to the contrary, and the fact that customary and treaty obligations often
co-exist
Nonetheless, art 38 does reflect a common sense approach to the ranking of sources
Thus, it is preferable to view the hierarchy of sources as a common method of reasoning rather than a strict
legal rule
2. TREATIES:
While treaties generate binding rights and obligations, they are not, strictly speaking, sources of law. Treaty
obligations are binding only if the parties concerned consent. Treaties, nonetheless, are the most important
source of obligation in international law today. Certain treaties bind so many states and are of such high
authority, that they operate as it they were legislative enactments.
Treaty = international convention. It is a contract between states. It is an international agreement where the
states agree to abide by the articles in the treaty.

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Treaties depend their validity on custom; namely the rule of pacta sunt servanda (agreements must be
obeyed). Treaties now provide the rules, which may then be so widely observed that they, in turn, generate
custom.
Some writers argue that these treaties should be seen as a source of law:
- Support for this view can be found in the fact that certain treaties bind so many states, and are of such high
authority, that they operate as if they were legislative enactments
Treaties can, therefore, be described as ‘law-making.’ These arguments, however, are difficult to sustain if
states refuse to accede to a treaty. Furthermore, it is difficult to distinguish between law-making treaties and
their opposite contract/particular treaties.
3. CUSTOM:
Along with treaties, customary law is one of the most important primary sources. International Customary law
should refelct what states think is the appropriate response to specific situations. If it is able to do so
successfully, it increases the chances of states compliance to the law.
= A source of law based on the practice of states. Because it is based on what states actually do, it is a dynamic
source of law.
It reflects a non-heirarchial, decentralised nature of the international legal system. ADVANTAGE: It is based on
the practice of states and really all states can contribute to the creation of customary international law. This
leads to the increased compliance – if it reflects what the states do, the states are more likely to adhere to it.
However, there are some states whose practice has a greater influence. DISADVANTAGE: it is quite hard to
decipher what customary international law is – this can lead to some uncertainty. It can be:
(a) Universal – most rules of customary international law bind all states in the world e.g. the proohibition
on the use of force.
(b) Regional – for example, African customary international law.
(c) Bilateral – a rule of custom that only applies between two states.
Article 38(1)(b) ICJ Statute “ a general principle of states accepted as law”

ICJ in Asylum case “constant and uniform usage, acceptance as law”
Therefore, it has two elements: State practice (actual practise of states) + opinio juris (what you are doing is
legally obligatory).
1. State practice:
• What States DO – the ‘material element’. Often what a state does is more complex than what an individual
does.
• States are abstarct entitites and as a result their ations are made up of the actions of state officials.
Therefore you need to lookat a wide variety of what state practise actually is.
• Examples: treaties; judicial decisions; diplomatic correspondence; national legislation; opinions of national
legal advisers; policy statements; press releases; government manuals; executive decisions; UN General
Assembly Resolutions; practice in international organisations : anything that sets out what a state official is
thinking or doing on a particualr issue. (this isnt as easy as it seems to detemine)

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• Akehurst: “State practice covers any act or statements by a state from which views about customary law
may be inferred” – this clears up the need for a wide variety of sources to determine what state practice is.
• Need to look at the following factors when determing state practice (characteristics):
1. Duration? How long does the parctise have to be on going for to establish International Customary Law.
There is no strict rule setting out how long a practise must be going in order to establish ICL – it depends on
the subject matter.
i. Often is determined what time of rule we are dealing with
ii. E.g. space law developed really quickly as it was sucha new area it meant ICL could develop very
fast. In these types of situations, instant ICL is formed.
iii. Slow development is seen when there is a long history dealing with certain issues. E.g. immunity
context – a new ICL will only be enforced with a long history of practise.
b. North Sea Continental Shelf Cases, para. 73 also about elimintation of maritime boundaries,
specifically the continetal shelf. The ICJ said that in order to form the basis of a rule of ICL, state
practise had to be extensive and virtually uniform. Therefore high threashold and use of virtually
indicates that some contra practise will not impact too much.
c. If there is a situation when there is a long establish practise then the new practise must be highly
uniform to replace it.
2. Uniformity? What happens when there is contra instances. Does there have to be complete uniformity?
a. Asylum Case : ICJ set out a high standard, ICJ rejected that ICL exsisted as they said there was too
much inconsistency. ICJ said ther had to be a constant and uniform practise. This indicated that the
practice fo states must be completely uniform and consistent to establish a case of CIL. But ICJ was
dealing with regional ICL and not universal therefore it is accepted to have completely uniform
practise in regions. Universal one doesn’t need complete uniformity.
b. Anglo-Norwegian Fisheries Case : dispute between UK and Norway in how you measure boundary
between sea. ICJ relied and agreed on there would be inconsistent state practises and this wouldn’t
impact establishment of ICL. This threshold was lowered and makes it possible to establish ICL.
There is still a very high threshold but allows some room for divergence.
c. Nicaragua Case : ICJ expresly saying that state practise had to amount to a settled practice, that it
doesn’t have to be unifrom and contrary practise will not stop the development of ICL. Universal
case.
3. Generality? How many states must contribute to a practise to be established as ICL. Not every state in the
world to act in a particular way - if one required all states to act in a particular would make it imposisble to
establish.
i. Foot path analogy: for the implementation of ICL is like a footpath in a grassy area, needs a certin
amount of people to follow the direction to make it visible. In doing so, some have heavier
footprints than others, similarily, some states’ practice have a heavier influnce than other states.
b. The doctrine of specially-affected States (in North Sea) – states that are particularly connected to
the subject matter in question. Sometimes practise can be established by a fewer number of states
in a particular area. The most obvious is when we are dealing with CIL in a cost line area, e.g. a
ractise of CHAD will not be releveant, but those of SA will be. Practise of a state most influential to
the issue will be most important in the formation of the ICL. Therefore practise can be etsablished
by a fewer number as they are particualry effected. Sometimes due to the weath and super power
is more influential in the formation of custom than weaker states. But this isn’t inherent in the fact
that they are wealthy but rather that they carry out more practise. E.g. USA do more and have more

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practise and more states will be likely to follow them it is likely that they will be more influential in
other states to follow them.
c. North Sea Continental Shelf Cases : ICJ said you need participation of most of the specially affected
states – most connected to a particualr issue in order to estbalish a new rule of custom. This
doesn’t mean that the practise of the small number of states will be overridden – need the
aquiessence of the smaller states and agreement of specially affected states = ICL
Therefore, we don’t need universality in International law. In essence, we are looking for a settled practise that
is accepted as law to be ICL. How many states that must contribute depends on the type of law that we are
dealing with.
2. Opinio Juris
• The ‘psychological/ subjective element’
• Belief that the action is required by law not just cause as a result of courtesy. In other words, the state is
acting in a way with the belief that they are legally obliged to do so. However, many states give economic
aid, but not because they are obliged by law  there is no customary international law.
• There is no customary international law without this belief
– Lotus case – the fact that states had acted in a certain way over a long period of time did not mean
that an ICL was created, it wasn’t enough t form a rule of custom. In other words, practise without
disbelief in legal obligation doesn’t form ICL. ICJ held the same decision in North Sea.
– North Sea Continental Shelf Cases: State practice must be accompanied by a “general recognition
that the rule of law or legal obligation is involved”
– Nicaragua case – the ICJ again emphasised the requirement of opinio iuris.
Problem with opinio iuris:

1. The ICJ has kept a high threshold for the proof of opinio juris – it is often very difficult to prove.
2. Also difficult to distinguish state practice from opinio iuris. Sometimes it may constitute a practise of
the state but it sometimes shows what he government sees as a legal obligation.
3. We need states to act contrary to exising law to form new laws – how would states have opinio iuris to
support new forms of law  they need to act contrary to old rules.
Examples: official government statements; votes in the UN; treaties codifying Customary International law.
(a) The problem with custom:
Custom is usually taken to be a certain pattern of behaviour (usus) consistently observed over a period of time,
thereby creating an expectation in the wider community that it will be repeated in the future.
The most problematic aspect of custom is its translation from fact to obligation. There is the question of
whether law can arise out of mere fact. In the nineteenth century, in order to become law, the usus had to be
accompanied by the parties’ sense that they were legally bound to behave in the manner signified by the
repeated practice.
The legitimacy of customary law also often comes into question. Consent is still taken to be the most credible
basis for the legitimacy of customary law, but it does pose certain intractable problems:

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1. It must be appreciated that law, by its very nature, is binding regardless of whether the legal subjects
agree to be bound. Yet the principle of consent implies that any state refusing to accept a practice is
not bound by it, which leads to the as yet unresolved problem of the ‘persistent objector’.
2. The form of the consent – whether consent needs to be express or tacit is not the issue here, since tacit
agreement has always been taken to be sufficient. The real question is how many legal subjects must
be involved. In systems of municipal law, only a majority is required. However, in International law, the
absence of a central authority suggests the need for universal consent.
It is evident from international practice that rules of customary law are readily accepted without the consent
of all states. The very notion of custom in international law is a method for accommodating an awkward body
of rules that lie between the purely consensual obligations arising from treaty and the non-consensual
obligations imposed by natural law.
The significance of consent depends on the nature of the particular argument.
(b) The legitimacy of custom
The significance of consent for customary law rests, in the final analysis, on the idea of an implicit social
contract amongst members of the international community. Social contract theory serves two functions:
1. it accounts for the origin of a society
2. it justifies obedience to the centralized forms of government
The process of law formation through custom poses what is undoubtedly a major theoretical conundrum for
international law, and it has significant implications for our understanding of the central concept in
international law: sovereignty.
Hart’s contribution to positivist jurisprudence provides a useful way of thinking. He distinguished two types of
social regulation:
1. Primary rules – do no more than prescribe certain standards of behaviour.
2. Secondary rules – developed when a society became more complex in order to specify the manner in
which the primary rules were to be ascertained, changed and applied.
Globalization with improved communication and increased social mobility, is transforming the ‘simple’
international community of the past into the ‘complex’ society of the twenty-first century. As a result, it is
becoming more difficult to determine whether custom has become law.
(c) Usage (usus)
Proof of a rule if customary law always begins with evidence of usus. Evidence must indicate a constant and
uniform usage practiced by the states in question.
Custom does not require absolutely rigorous conformity with the rule. If universal observance of a custom is
not required, how many states must be involved before the custom can be considered sufficiently general?
It is fully accepted that a small number of states may establish customary rights and duties applicable only to
themselves.
Were a single state to refuse to be considered bound by an emerging rule of customary law, it could never be
bound, if the basis of customary law is taken to be state consent.

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(d) Opinio iuris
A repeated act does not necessarily constitute an obligatory rule of law. The attitude of the participants in
certain patterns of behaviour, and that of the wider community, is critical in determining whether an act in
question is law or some lesser norm.
Legal obligation = a subjective conviction, not merely a motive or reason, that certain conduct is obligatory.
It follows from the declaratory theory that the imposition of a psychological requirement is necessary only to
make the law known, not to create it.
A ‘sliding scale’ = at one end of a continuum, a regular state practice may establish customary law without
much need for proof of opinio iuris. As the frequency and uniformity of the practice decline, however, opinio
iuris becomes more important. The trade-off between the two requirements is contingent on the importance
of the act in question and the reasonableness of the rule.
Methods for proving customary International Law

There are certain methods for proving the existence of international law. Rules of international law may be
proved by referring to ‘judicial decisions… as subsidiary means for the determination of rules of law.’
(i) State practice

- What type of governmental conduct should be considered state practice for the purpose of establishing
customary international law?
- Some commentators claim that all forms of conduct qualify, thereby including legislative, executive and
judicial acts, together with diplomatic correspondence and statements by officials declaring
government views on international law.
- This expansive approach has the effect, however, of conflating the usus element of customary law with
opinio iuris.
(ii) Judicial decisions

- Judicial and arbitral decisions may be used as evidence of the fact that a state has accepted a rule of
international customary law.
- International organisations have a certain degree of legal personality; namely, the capacity necessary to
carry out their functions.
(iii) The writings of publicists

- In the past, the fate of international law lay in the hands of the great institutional writers. They were
responsible for describing not only the practice of states, from which new rules of international law
could be inferred, but also, through deductive reasoning, revealing the principles of natural law.
- Over the last century, however, the role of writers has somewhat diminished in importance, a trend
that has been due in part at least to the increasing number of treaties and judicial decisions, which
have given greater clarity and certainty to the rules of custom.
(iv) General Assembly resolutions

- Resolutions of the GA may function either as state practice or as opinio iuris. They can obviously be
used as evidence of state practice if they relate to what member states actually do.

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- Otherwise, they may simply express what states think the law ought to be.
- In spite of increasing reliance on GA resolutions as sources of authority in legal argument, we have
scant guidelines from the International Court of Justice on their normative status or their function in
the proof of custom.
- Each resolution must be assessed with regard to its consent, the conditions surrounding its adoption
and its declared normative character: resolutions that use the language of firm obligation offer better
evidence of opinio iuris than those that are simply aspirational in nature.
• Find a primary source wherever possible!
Change of Customary International Law

- Must act be contrary to old Customary law to establish new customary law?
- How can we establish a new rule of Customary International law if we must show opinio juris?
- How does one form new Customary international law if one believes they are under the leal obligation to
act that way – basically they have to break the old custom which would be contrary to present custom law.
- If states have to start acting contrary to the old rule and breakng established custom, how do they have
opinio juris.
- At the formation of new custom state will know that it is acting contrary to present custom
- If the state starts to follow the new practice in a uniform way then it will replace the old custom.
- ICJ in Nicaragua case, p.14: “Reliance by a State on a novel right or an unprecedented exception to the
principle might, if shared in principle by other States, tend towards a modification of customary
international law” - if a new practise is put forward by a state and the other states follow that practise
then new customary international law is formed. The exact point that this turn over occurs is hard to
determine as it is not a system which is regulated by code.
Relationship between Treaties and CIL

• Hierarchy: none is evident in various sources of law, e.g. treaty is not above custom and vice versa.
Codification
4.• General of customary
principles of law international law: positive relation between custom and treaty. In these cases
there is codification between treaty and custom.
General principles function
– E.g., Vienna as a subsidiary
Convention on thesource
Law ofofTreaties;
law. These
UN principles
Convention include
on thecertain
Law ofbasic ideas distilled
the Sea
from Roman and
• Treaties canon
as basis forlaw, togetherinternational
customary with the European
law: ius commune, notably:
- Res judicata
– E.g., Nicaragua case on the prohibition of the use of force. In terms of use of force, those rules
- No right
hadarises
passedoutin of wrongdoing
terms of customary interantional law.
- Fraud taints all associated transactions
- An arbitrator has no power outside the parties’ agreement
- Tribunals must hear both parties
- No one ought to be judge in his own cause

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- Both parties must come to court with ‘clean hands’

- Law does not arise out of fact
An especially important general principle is the duty to act in good faith.
Diversion of the Water from the Meuse Case (Netherlands v Belgium) (1937) decided by the predacessor of ICJ. In
this case, the court held that the principle of equity were found in common law and civilian law. These are primary
sources of international law and thus the principles of equity could be relied on.
Art 38: general principles are the 3rd primary source of international law. These are legal maxims that are
common to domestic legal systems that are common to most legal systems in the world. These general
principles can be used to:
(1) Fill in gaps in the international legal system
(2) Bring in elements of fairness into international adjudication
5. Ius cogens (special laws)
In its earlier days, international law was generally considered an aspect of natural law, and its primary sources
were believed to be divine will, the forces of nature and the human capacity to reason.
Any man-made source of obligation, such as treaty or practice, in conflict with principles derived from these
higher sources was deemed invalid.
In the modern era, however, international law was viewed as a product of the will of states.
Certain rules of international law have always been considered so fundamental to the working of the system
that states may not opt out of them.
While there may be general agreement as to the existence of a category of rules deemed ius cogens, it is still
uncertain which rules are included.
6. Soft law: The status of General Assembly and Security Council resolutions
Strictly speaking, a resolution of the GA is legally binding on members only if it relates to the internal workings
of the Assembly.
A GA resolution may create customary international law only when it is observed in state practice, and is
accompanied by the necessary opinio iuris.
The ambiguous nature of resolutions passed by the GA gave rise to a distinction between hard and soft law.
Soft law = law making should be viewed as a process, not as a single, decisive act of legislation.
7. Codification and the progressive development of international law
Since the late nineteenth century, codification of international law has been the subject of both public and
private initiatives at various levels.

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• Art. 2 Vienna Convention on the Law of Treaties: “ ‘treaty’ means an international agreement
concluded between States in written form and governed by international law, whether embodied in a
single instrument or in two or more related instruments and whatever its particular designation.” It is
actually more limited than treaties are. Treaties can go beyond this def.: can have treaties between a
state and a international organisations (e.g. UN); can have oral treaties.
– VCLT 1969 – the ‘treaty on treaties’
• Bilateral (between 2 states) vs multilateral (between many states e.g. Charter of African Union)
Universal treaties – signed up to by almost all the states in the world e.g. Charter of the UN – treaty
that set up UN.
• Treaties can have different purposes: Rule-setting (rules governing the behavour of states) vs
institution-establishing (treaties to set up a new international organisations e.g. UN Charter).
• If a treaty is to be governed by the Vienna Convention it must be in written form. There are
considerable formalities to publicise the contents of the treaty and the giving of consent.
3. Chapter 7: TREATIES
A treaty is binding when a state consents to be bound by the treaty. In other words, they are only bound by treaties to
which they consent.
1. The Vienna Convention and its scope of application:

The scope is limited to written treaties – those concluded after it came into force in 1980 and only agreements
between states.
A gap is in the process of being remedied, which concerns agreements that involve international organizations.
2. Requirements for a valid treaty:

(a) The parties
Only the traditional subjects of international law – sovereign states- have full treaty-making capaicty. Treaties
must therefore be distinguished from public contracts, which are agreements concluded by subjects with
objects of international law.
(b) Intention
It is presumed, unless the contrary is proved, that the parties intended to conclude a valid treaty. In this regard,
three factors must be considered:
1. The parties must have intended to create legal obligations – emphasis is placed on the actual terms of
the agreement and the circumstances in which it was drawn up
2. States may decide that an agreement is to be governed by municipal law

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3. A unilateral declaration by a state may also give rise to binding international obligations
(c) Consent
The parties must consent to the SAME provisions
Partial consent: reservations
 If the treaty permits, a potential state party that does not fully concur with all the terms of the agreement
may make a reservation.
 Under article 19 of the Convention, reservations are permitted unless the treaty explicitly prohibits them;
the treaty provides that only specific reservations may be made; the reservation in question is
incompatible with the object and the purpose of the treaty.
 Reservations are different to declarations and derogations (parties can depart from the treaty for a
specified time period)
 To determine the effect of a reservation, bilateral and multilateral treaties must be distinguished.
Bilateral = A reservation operates as a rejection of the treaty together with the counter-offer of another
treaty. If the other party does not accept the reservation, no treaty is produced, because the parties were
not ad item (they didn’t consent to the same provisions). If the other party does, however, accept the
reservation, consensus is achieved, and the treaty comes into force subject to the reservation.
 In the case of Reservation the ICJ answered the following questions regarding reservations:
(a) A reserving state could be party to a convention if other states objected its reservation, if the reservation was
compatible with the object and purpose of the convention
(b) States refusing to accept the reservation need not regard the reserving party as a party
(c) Signatories can only object to reservations on ratification
(d) If the reservation is not compatible with the convention – the parties must determined the consequences
themselves
Reservations are generally allowed, unless:

• Treaty expressly excludes reservations
• Treaty expressly allows only certain types of reservations
• The reservation is contrary to the object and purpose of the treaty
The consequences of an invalid registration: (there is much debate surrounding this issue)
- Option 1: State is bound by whole treaty – reservation falls away
- Option 2: State is not a party to the treaty – state would not have signed up for the treaty if they knew they could
not get the reservation.
Mode of expressing consent
The Vienna Convention provides that consent may be expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or accession or by any other means if so agreed

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In former times, consent was expressed by mere signature, but the municipal laws of most states now require
ratification by a relevant organ of government before the states can be considered bound. If a state’s system of
municipal law has no clear rules about the need for ratification, the Vienna Convention has provisions for
deciding that mode of consent is needed:
 The treaty itself may demand wither signature or ratification
 The parties may specifically agree that signature or ratification should indicate full consent
 A state might have indicated that signature or ratification was intended to be binding in the powers given
to representatives at the state of or during negotiations.
Consent may also be expressed by accession (which is also sometimes termed adhesion or adherence). An
acceding state is one that did not take part in the negotiations but is later allowed to join. An exchange of
instruments between the parties may also express consent. In the absence of a contrary provision, this method
is deemed dot constitute consent.
Signature and ratification:

ICJ in Cameroon v Nigeria (2002)
Cameroon and Nigeria agreed to a treaty. Nigeria did not want to comply with the treaty and they breached the treaty.
Cameroon brought the treaty to the International Court of Justice. Nigeria claimed that the treaty was never breached
because although they signed it, they did not ratify the treaty and thus the treaty is not binding. The International Court
of Justice looked at the evidence in the negotiating process and they held that Nigeria and Cameroon decided that only
signature was required and that it would be binding immediately. Test: what did the parties intend?
Obligations on States that sign but don’t ratify a treaty?

E.g., South Africa at the ICESCR – they signed the treaty long ago but they did not ratify it until 2015. What happens to
these states? Do they owe obligations? They are not full parties to the treaty as they have not consented. However,
article 18 provides that these states owe much more limited obligations. If the state signed the treaty but has not ratified
it (and it is subject to ratification) it is obliged to refrain from acts that would go against the purpose of the treaty.
Limited obligation = not to work contrary to the objective of the treaty.
Entry into force
Consent and entry into force must be distinguished. Although treaties normally become effective as soon as
consent is given, entry into force may be delayed after consent is given.
(d) Registration
Unregistered treaties are valid – but may not be invoked before any organ of the UN (includes the ICJ). When
registered, they are published by the UN Secretariat

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3. The Ius Cogens:

The notion of treaty-making gives states considerable freedom to determine whatever rights and duties they
wish to undertake inter se. The ius cogens, however, imposes a significant limitation on this freedom. This is
because ius cogens denotes a body of overriding rules of international law which states are always bound to
observe. If a treaty does not conform to these rules, it is invalid to the extent of the conflict.
These rules include; the prohibition against acts of aggression, apartheid or genocide and the right to self-
determination
Ius cogens represents a body of overriding rules of international law which states are always bound to observe.
If a treaty does not conform to these rules, it is invalid to the extent of the conflict.
4. Persons negotiating treaties:
Only certain representatives of a state have the power to negotiate and conclude treaties on the state’s behalf.
The Vienna Convention provides that a person is deemed to be representing a state if she produces full
appropriate powers, or it appears from the practice of the states concerned (or from other circumstances) that
their intention was to deem that particular person a representative of the state for treaty-making purposes.
Heads of state, heads of government and ministers of foreign affairs are considered to be representatives of
the state. A particular state’s municipal law may provide that the head of state has no power to conclude
treaties without the prior consent of the legislature.
If a person disregards the rule of their domestic law that the legislature still has to give a head of state power,
the treaty is regarded as VALID, unless the other parties clearly knew that the head of state was acting in
breach of municipal law
According to s 231(1) of the Final Constitution, read with chapter 5, the President and the national executive
have powers to sign treaties.
S 231(2) states that the National Assembly and the National Council of Provinces have the power to ratify or
accede to treaties.
Where the agreement concerned is of a technical, administrative or executive nature, the state is bound by an
accelerated procedure – i.e. the instrument need only be tabled in National Assembly and the National Council
of Provinces within a reasonable time.
5. Form:
International customary law provides no specific form for treaties. They may be written or oral, although in
practice, considerable formality is observed in order to publicize both the contents of a treaty and the giving of
consent.

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6. Avoidance:
A treaty is which is apparently valid, may be avoided if its creation was flawed in one of the following ways:
fraud, corruption, mistake of fact, coercion or conflict with a provision of domestic law.
In such cases mentioned above, the invalidity is relative – other parties can still agree to continue with the
treaty. Exception: coercion results in absolute invalidity. The treaty is automatically void and of no legal effect.
(a) Fraud and corruption: if a state was induced to enter into a treaty by the fraudulent conduct of another
party, the defrauded state may repudiate the treaty. Similarly, corruption of a state’s representative during
the negotiations is a ground for avoiding a treaty.
(b) Coercion and unequal treaties: Personal coercion, which denotes duress applied to a representative
negotiating a treaty, gives the aggrieved state a ground for repudiation. By contrast, coercion applied to the
state itself is not necessarily a ground for avoidance. Today, treaties obtained in terms of unlawful military
duress may now be repudiated by the victim (the state itself). However, political, diplomatic and economic
coercion are considered permissible
A doctrine of unequal treaties is sometimes argued for a basis for avoiding treaties – not accepted today as
an argument for avoidance.
(c) Error: If parties to a treaty make a mistake about an essential fact that was relevant to their obligations,
they clearly did not consent. In theory, a treaty should be regarded as completely void, but in practice it is
usually considered valid unless one of the parties invokes the error. The mistake then becomes a ground for
avoiding the treaty. Mere misrepresentation is not a sufficient reason for avoiding the treaty, if both the
parties were in basic agreement as to the object of the treaty. Similarly, a unilateral mistake of fact is also
generally not a ground for avoidance.
(d) Internal law: generally speaking, a state may not invoke the fact that its consent to be bound by a treaty
was made in violation of its domestic law regarding competence to conclude treaties. Only where the
violation of internal law was manifest and concerned a domestic rule of fundamental importance, it may
operate to invalidate consent
7. Revision:
Revision implies alternation or amendment of a treaty, and, in principle, all parties must consent to whatever
changes are made.
There are two types of revision:

1. De jure (an express amendment of the original treaty made by way of another treaty)
2. De Facto (tacit agreement to change some provisions). This is not a waiver of past breaches – these are
single, NOT persistent breaches.
8. Termination:
Treaties that do not contain specific time limits are deemed to be of indefinite duration. Treaties may be
terminated in the following ways:

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(a) Express agreement – ending a treaty by a subsequent agreement (the most obvious method).
(b) Disuse – amounts to a tacit agreement by the parties that they will no longer fulfil their treaty obligations.
(c) Implied right of denunciation or withdrawal – a right of withdrawal may also be implied, especially in
commercial treaties.
(d) Later treaty – two or more treaties may be concluded on closely related topics, and may therefore contain
inconsistent provisions. It is a fundamental principle that a later treaty dealing with the same subject
matter as an earlier treaty may terminate the earlier treaty, either expressly or by implication.
Furthermore, the treaty to which both states are party governs their relations.
(e) Retaliation – if a party commits a material breach of a treaty, the other party (or parties) may retaliate by
terminating the treaty or by suspending its operation in whole or in part.
(f) Supervening impossibility of performance – The destruction or appearance of an object that was essential
to carry out a treaty is a ground for ending the parties’ relationship, because further performance of the
treaty is impossible. Should performance only be impossible for only a short period of time, operation of
the treaty may be suspended, rather than terminated.
(g) Rebus sic stantibus – the general principle of international customary law is that treaties are concluded on
an assumption that certain basic circumstances exist. The parties contract only on this understanding. If the
situation were to change, the parties would have a ground for terminating the treaty. In the Dam Project
case, the ICJ held that in order to constitute ‘fundamental change’ the circumstances must have been
unforeseen and they must be radically different, as well as the previous circumstances must have formed
the basis of the parties consent. Fundamental change of circumstances may not be invoked to cancel
treaties establishing boundaries.
(h) Severance of diplomatic or consular relations – this does not affect treaty obligations, unless the existence
of those relations is indispensable to application of the treaty.
(i) Outbreak of war – this is an old rule that I s not applicable anymore. Formally, war ended all treaties
between the belligerent states.
(j) Separability of treaty provisions – partial denunciation or suspension of a treaty may be permissible in
three situations:
- If breach of the material provision entitles the aggrieved party to suspend part of that treaty
- In cases of fraud or corruption
- Where the ground for withdrawal or suspension relates to a specific provision
9. Interpretation:
(a) Customary law

The rules for interpreting treaties have mostly been borrowed from municipal laws. Because these rules were
never systematized, the customary law on this topic consists of little more than a collection of general
principles. Typical examples are the following:
 Restrictive interpretation – treaties must be interpreted so as to infringe on state sovereignty as little as
possible.
 Express lists – if a treaty expressly lists certain items, it cannot be read to include other items that are
not mentioned.
 Specific term must be interpreted in light of the more general term

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(b) General approaches to interpretation

Aside from these maxims, state practice has followed three general approaches to interpretation:
1. The textual approach:
- The text of a treaty expresses the parties intention, and whoever interprets it is therefore bound by
the plain and ordinary meaning of the words appearing in the text.
- No reference is permitted to sources outside the text.
- If a party alleges a particular meaning of a word – they must prove this.
2. The parties’ intention:
- Subjective, in order to discover what the parties intended, one may look to their words and deeds,
both before and after concluding the text.
- This approach allows for external documents to be used in order to establish intention.
- Preparatory works may not be invoked against states who were not part of the negotiations
process.
- One can look to their subsequent conduct in applying the treaty to ascertain intention.
3. The teleological or purposive approach:
- Also known as the ‘aims and purposes’ approach.
- A treaty is presumed to have an overriding purpose, independent of the actual text or the parties
intentions.
- The principle of effective interpretation is at play here – the maxim seeks to make a treaty work
rather than fail
* Tribunals might use all three approaches to understand a text
(c) The Vienna Convention
 Article 38 provides that, when interpreting treaties, the text should be looked to first, it should be read
in context and in the light of its object and purpose.
 Article 32 – if you cannot get a clear meaning of the treaty from the text, you can then resort to
supplementary means of interpretation. They can be used to confirm the interpretation or when the
textual interpretation does not make sense. Recourse is permitted to the travaux preparatoires
(preparatory work)
 The time at which a meaning should be fixed – when they concluded a treaty and their subsequent
practice
(d) Treaty-specific interpretive regimes
 Certain treaty regimes provide treaty-specific interpretive guidance to be used in place of, or in addition
to, the Vienna Convention. The ICJ is not bound by the specific interpretations done by treaty bodies,
but it should ascribed significant weight to them.
(e) Language
If a text was authenticated in two or more languages, and if meanings in these languages differ, which
meaning should be preferred?
 No version can be considered superior – if it was authenticated in two or more languages
 Usually, the tribunals refer to the language in which the treaty was negotiated and drafted in
 They must prefer the more limited interpretation
 Article 33 of the Vienna Convention confirms these principles

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(f) Potential conflicts between treaty obligations

With the increasing fragmentation of international law, the problem of how to resolve conflicts between
treaties has become ever more important.
 Generally speaking, parties resort to the principles set out in article 30 of the Vienna Convention.
 Nowadays a clause referring to this is also added to the preamble of a treaty
 Doctrine of mutual supportiveness – to avoid conflicts
Third parties:
Treaties obviously bind only the parties to them. Hence, the general rule in customary law is that treaties
create neither rights nor duties for third parties. This rule was encoded in article 34 of the Vienna Convention.
Article 35, however, provides that a third party may acquire obligations or rights under a treaty, if the parties
so intended and the third party accepts/consents to the obligation in writing. Similarly, a third party acquires
rights under a treaty, if the parties to the treaty so intended and the third party consents.
Unless the treaty otherwise provides, consent is presumed until the contrary is proved.
CASE LAW:
Case Concerning the Land and Maritime Boundary between Cameroon and Nigeria (Cameroon v Nigeria:
Equatorial Guinea intervening), Judgment, ICJ Reports 2002, p. 303, para 247-268
This case concerns the validity of treaties fixing the maritime boundary between Cameroon and Nigeria.
Facts:
 Cameroon argues that the maritime boundary between Cameroon and Nigeria has been delimited
(drawing of boundaries) by valid international agreements between the parties. Cameroon contends that
the boundary was delimited in the Yaounde II Declaration which was an international agreement binding
on both parties and that this was later confirmed by the terms of the Maroua Declaration. Cameroon
requests that the court confirm the delimitation
 Cameroon argues that:
 The signing of the Maroua Agreement by the Heads of State of Nigeria and Cameroon expresses the
consent of the two states to be bound by the treaty.
 The two Heads of State manifested their intention to be bound by the instrument they signed.
 No reservation or condition was expressed in the text and the instrument was not expressed to be
subject to ratification.
 The validity of the agreement was confirmed by the subsequent exchange of letters between the
HoS correcting a technical error.
 The reference to the Yaounde II Declaration in the Maroua Declaration confirms that the legal status
of the former is no different from that of the latter.
 The publication of the agreement with the Secretariat of the UN is also proof of consent.

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 Nigeria denies the existence of a maritime delimitation up to that point and maintains that the whole
maritime delimitation must be undertaken from the start.
 Nigeria argues that the Yaounde II Declaration is not a binding agreement because it simply
represented the record of a meeting and that the matter was ‘subject to further discussion at
subsequent meetings.’
 Nigeria argues that the Maroua Declaration is INVALID as it was not ratified after being signed by
the HoS. It argues that under the Nigerian Constitution executive acts were to be carried out by the
Supreme Military Council or subject to its approval. Nigeria argues further that Cameroon knew, or
should have known that the HoS of Nigeria did not have the authority to make legally binding
commitments without referring it back to the Supreme Military Council.
Issue: Is the Maroua Declaration an international agreement binding on both parties?
Reasoning:
* Unnecessary to determine the status of the Yaounde II Declaration independently since its terms are
confirmed by the Maroua Declaration.
 The Maroua Declaration constitutes an international agreement concluded between States in written form
and tracing a boundary, and is thus governed by Vienna Convention of the Law of Treaties (VCLT).
 Argument 1 – signed but not ratified: The Court cannot accept the argument that the Declaration was
invalid under IL because it was signed but never ratified. In IL, treaties may require that consent requires
signature + ratification BUT there are treaties that enter into force immediately upon signature. VCLT leaves
it up to states to decide which procedure they want to follow. Thus, the Court held that the Declaration
entered into force immediately upon its signature
 Argument 2 – Nigeria’s constitutional rules regarding the conclusion of treaties were not complied with:
Art. 46(1) VCLT – ‘a State may not invoke the fact that its consent to be bound by a treaty has been
expressed in violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent... unless the violation was manifest and concerned a rule of its internal law of
fundamental importance.’ Art 46(2) VCLT – ‘a violation is manifest if it would be objectively evident to any
State.’ Heads of State are presumed to be capable of representing their State (art. 7 VCLT), thus a limitation
of a HoS’s capacity is NOT MANIFEST as it was not properly publicised.
 Argument 3 – state representative’s powers: Nigeria argued that Cameroon knew or ought to have known
that HoS of Nigeria had no power legally to bind Nigeria without consulting Nigerian Government. The
Court held that there is no general legal obligation for States to keep themselves informed of legislation
and constitutional developments in other states.
 The Court also provided that the fact that the two parties had made a correction to the Declaration and
that Nigeria had not contested its validity or applicability previously is proof that the parties treated the
Declaration as valid and applicable.

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The ICJ looked at the evidence in the negotiating process and held that Cameroon and Nigeria decided that
only signature was required (not ratification) and that the treaty would be binding immediately.
TEST: WHAT DID THE PARTIES INTEND
Conclusion: Both the Yaounde II Declaration and the Maroua Declaration are binding international
agreements.
Legal Consequences for States of the Continued Presence of South Africa in Namibia (South West
Africa) notwithstanding Security Council Resolution 276 (1970), Advisory Opinion, ICJ Reports
1971, p.16, para. 1-22
This case concerns using subsequent practice in order to interpret provisions of the UN Charter.
The Government of SA argued that the resolution 284 of the Security Council, which requested the advisory
opinion of the Court, is invalid, and therefore the Court is not competent to deliver the opinion.
Facts:
 The objection was that in voting on the resolution two permanent members of the Security Council
abstained from voting instead of voting. SA Government argued that the resolution was consequently not
adopted by an affirmative vote of 9 members, including the concurring votes of the permanent members
as required by Art. 27 of the Charter of the UN.
Issue: What is the effect of voluntary abstention by a permanent member of Security Council? Is the resolution
valid?
Reasoning:
 On a textual interpretation, the resolution would have been invalid as it did not comply with the
requirements in Art. 27 of the Charter of the UN.
 However, the ICJ held that subsequent practice showed that everyone accepted that a no vote was
acceptable. The proceedings of the Security Council over a long period of time showed evidence that the
members of the Council ‘interpreted the practice of voluntary abstention by a permanent member as not
constituting a bar to the adoption of resolutions.’ ‘By abstaining, a member does not signify its objection to
the approval of what is being proposed.’
 Members abstained from voting as they did not agree with the resolution but they did not want to cast a
negative vote and thus prevent the adoption of the resolution.
Conclusion: By looking at subsequent practices of the Members of the UN, it is clear that an abstention does
doe invalidate the resolution. Thus, the resolution is passed.
Reservations to the Convention on Genocide, Advisory Opinion, ICJ Reports 1951, p. 15, p.21-30
(This case opinion deals with reservations)
The GA requested the ICJ to give an opinion on the following questions:

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 In so far as concerns the Convention on the Prevention and Punishment of the Crime of Genocide in the
event of a state ratifying or acceding to the Convention subject to a reservation made either on ratification
or on accession, or on signature followed by ratification:
1. Can the reserving state be regarded as being a party to the Convention while still maintaining its reservation
if the reservation is objected to by one or more of the parties to the Convention and not by others?
2. If the answer to question one is yes, what is the effect of the reservation as between the reserving state and:
(a) The parties which object to the reservation?
(b) Those which accept it?
3. What would be the legal effect as regards the answer to question 1 if an objection to a reservation is made:
(a) By a signatory which has not yet ratified?
(b) By a state entitled to sign or accede but which has not yet done so?
Question1:
 No reservation can be effective against any State without its agreement to thereto
 It is a generally recognized principle that a multilateral agreement is the result of an agreement freely
concluded upon its clauses and that consequently none of the contracting parties is entitled to frustrate
or impair, by means of unilateral decisions or agreements, the purpose and raison d’etre of the
convention
 The court notes however, that it is proper to refer to a variety of circumstances which would lead to a
more flexible application of this principle
- An example is the universal character of the UN
 It must be pointed out that although the Genocide Convention was finally proved unanimously, it is
nevertheless a result of a series of majority votes
 The majority principle, while facilitating the conclusion of multilateral conventions, may also make it
necessary for certain states to make reservations
 The character, purpose, provisions, mode of preparation and adoption of the multilateral convention –
must be considered in determining, in absence of any express provision on the subject, the possibility
of making reservations, as well as their validity and effect
 For states to make reservations was contemplated at successive stages of the drafting of this
convention
 Thus, now that it has been established that reservations under this convention are permitted, the court
turns to decide what kind of reservations may be made and what kind of objections may be taken to
them:
- The solutions of these problems must be found in the special characteristics of the Genocide
Convention
- The origin and character of the Convention, the objects pursued by the GA and the contracting
parties, the relations which exist between the provisions of the convention and between those
provisions and these objects, furnish elements of interpretation of the will of the GA and the
parties
- After analysing these aspects of the convention, the court comes to the conclusion that it is the
compatibility of the reservation with the object and purpose of the Convention that must furnish
the criterion for the attitude of a State in making the reservation on accession, as well as for the
appraisal by a State in objecting to the reservation
 The court notes that it does not agree with the sovereignty argument – that because states are
sovereign they should be able to make any reservations they wish
 The court also does not agree that there exists a rule of international law subjecting the effect of a
reservation to the express or tacit assent of all the contracting parties

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Question 2:
 A reserving state could be party to a convention if other states objected its reservation, if the
reservation was compatible with the object and purpose of the convention
 States refusing to accept the reservation need not regard the reserving party as a party (this could be
only for specified provisions too)
 States who accept the reservation will regard the reserving party as party to the convention
Question 3:
(a) Signatories can only object to reservations on ratification – but they do have a provisional status which
confers upon them a right to formulate as a precautionary measure objections which themselves have a
provisional character
(b) States who have not signed or acceded to a convention do not have this right
Asylum Case (Colombia v Peru), ICJ Reports 1950, p. 266, p. 276-278

(This case deals with customs)
 The origin of this case lies in the asylum granted on Janurary 3 rd, 1949, by the Columbian Ambassador
to M. Victor Raul Haya de la Torre, head of a political party in Peru
 The Columbian government in this case, invoked ‘American international law in general’
 In addition to the rules arising from agreements which have already been considered, it has relied on
an alleged regional or local custom peculiar to Latin-American States
 The ICJ goes on to explain that the party which relies on a custom of this kind must prove that this
custom is established in such a manner that it has become binding on the other Party
 The Columbian Government must prove that the rule invoked by it is in accordance with a constant and
uniform usage practiced by the States in question and that, this usage is the expression of a right
appertaining to the State granting asylum and a duty incumbent on the territorial State
 This follows from art 38 of the Statute of the Court, which refers to international custom, as evidence of
a general practice accepted as law
 The court finds that the Government has not proved the existence of such a custom
North Sea Continental Shelf Cases (Federal Republic of Germany v Denmark and The Netherlands), para. 70-
101.
Facts:
 Last stage of argument put forward by Denmark & Netherlands: ‘that even if there was at the date of the Geneva
Convention no rule of customary international law in favour of the equidistance principle, & no such rule was crystallised in Art 6
of Convention, nevertheless such a rule has come into being since the Convention, partly because of its own impact, partly on
the basis of subsequent State practice; - and that this rule, being now a rule of customary international law binding on all States,
incl. therefore the Federal Republic, should be declared applicable to the delimitation of boundaries between the Parties’
respective continental shelf areas in the North Sea.’
Legal Issue:
 Whether the practice/conduct in question i.e. delimitation of adjacent states by application of the
equidistance principle can be said to have become a binding rule of international customary law?

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Judgment:
 Argument put forward is based on Art 6 of Convention having such an influence, to do so it must be a
‘norm-creating provision’ which has generated a rule, which has since passed into thee corpus of
international law, & is now accepted as opinio juris, and hence become binding in countries even who are
not party to Convention.
 ICJ admits that process occurs & that is a recognised method ‘by which rules of international customary law may be
formed.’ However, certain conditions need to be considered:
1. ‘the provision concerned should… be of a fundamentally norm-creating character such as could be regarded as forming
This provision in abstract seems to fulfil this condition, but in context of Geneva
basis of general rule.’
Convention – doubtful.
2. ‘part played by notion of special circumstances relative to principle of equidistance as embodied in Art 6, and the…still
unresolved controversies as to the exact meaning & scope of this notion, must raise further doubts as to the potentially
norm-creating character of the rule.’
3. ‘…the faculty of making reservations to Art 6… does add considerably to the difficulty of regarding this result as having
been brought about on the basis of the Convention.’
 Other elements necessary before conventional rule can be considered to have become general rule of
international law > ‘a very widespread & representative participation in the convention might suffice of itself, provided it incl.
that of States whose interests were specially affected.’ ICJ notes that element has not been fulfilled as no. of
ratifications & accessions so far, although many are not sufficient. & further that ‘non-ratification may
sometimes be due to factors other than active disapproval of the convention concerned can hardly constitute a basis on which
positive acceptance of its principles can be implied.’
 Time element: 10 yrs since signed convention – 5 yrs since came into force – 3 yrs present proceedings.
Court says although only a short time period has passed – this may not be a ‘bar to the formation of a new rule
of customary international law… an indispensable requirement would be that within the period in q… State practice, incl. that of
States whose interests are specially affected, should have been both extensive & virtually uniform in the sense of the
provision invoked - & should have occurred in way as to show a general recognition that a rule of law/legal obligation is
involved.’
 Court considers whether the above requirement has been met i.e. ‘whether State practice in the matter of
continental shelf delimitation has, subsequent to the Geneva Convention, been of such a kind as to satisfy this requirement.’
States that many of cases brought before court are not reliable as a source of precedent in present matter.
 Court states that more than ½ of States in matter were party to Convention & hence presumably acted in
application thereof & hence does not lead to inference of existence of a rule of customary international law
concerning the equidistance principle.
 States that were not party to Convention but acted in accordance thereto, were not enough to constitute
creation of opinio juris > to do so have to fulfil 2 conditions: 1. Action has to be a settled practice & 2.
Action must be done in such a way so as to be ‘evidence of a belief that this practice is rendered obligatory by the
existence of a rule of law requiring it.’ NB is that not a lot of States concerned ‘agreed to draw/did draw the boundaries
concerned according to the principle of equidistance.’
 In most cases is also relevant that delimitations were between opposite states & not adjacent & hence do
not lead to precedent in present case that concerns delimitation of lateral boundaries.
 ‘The Court accordingly concludes that if the Geneva Convention was not in its origins/inception declaratory of a mandatory rule
of customary international law enjoining the use of the equidistance principle for delimitation of continental shelf areas between
adjacent States, neither has its subsequent effect been constitutive of such a rule,’ > ‘final conclusion… that the use of the
equidistance method is not obligatory for the delimitation of the areas concerned in the present proceedings.’
 ICJ does not have to prescribe methods for delimitation of States concerned.

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 History of legal regime of the continental shelf – equidistance method is not rule of law because goes
against what is needed for opinion juris in delimitation >
1. Principles of delimitation must be object of agreement between States &
2. Agreement is to be arrived at in terms of equitable principles.
Court states that may use various different methods (even different methods in conjunction with each
other) for the ‘effecting of a delimitation of adjoining continental shelf areas’ > as long as their application leads to a
reasonable result.
NB that ‘Equity does not necessarily imply equity.’ > ‘…is not a q of totally refashioning geography whatever the facts of the
situation, but given a geographical situation of quasi-equality as between a no. of States, of abating the effects of an incidental
special feature from which an unjustifiable difference of treatment could result.’ > hence the need to use more than one
method of delimitation to avoid this occurrence.
 ‘The continental shelf, is, by definition, an area physically extending the territory of most coastal States into a species of platform
which has attracted the attention 1st of geographers & hydrographers & then of jurists. ’
 Apply the principle that the land dominates the sea to delimitation & hence the geographical configuration
of the coastlines of countries becomes an NB consideration; also NB with delimitation of adjacent States is
the unity of any deposits; last NB factor is ‘element of a reasonable degree of proportionality which a delimitation
effected according to equitable principles ought to bring about between the extent of the continental shelf appertaining to the
States concerned & the lengths of their respective coastlines,’
Answer to legal issue:

No, principle of equidistance as a method of delimitation was found NOT to have become a rule of
international customary law & hence is not binding/obligatory.
Outcome:
 Outcome/order in [para 101; pg. 55] most NB part of judgment, because it essentially summarises the
whole thing > Court finds that in each case:
(A) Use of equidistance method of delimitation not being obligatory
(B) No other single method of delimitation
(C) Principles & rules of international law applicable to the delimitation as between the Parties of the areas
of the continental shelf in the North sea are:
1. Delimitation is to be effected by agreement ito equitable principles;
2. If delimitation leads to overlap – have to agree on proportions to divide into/failing agreement
divide equally.
(D) Ito negotiations, NB factors to take into account:
1. The general configuration of the coasts of the Parties, & presence of any unusual features;
2. The physical & geographical structure, & natural resources of the the continental shelf areas
involved;
3. The element of reasonable degree of proportionality, which delimitation carried out in accordance
with equitable principles ought to bring about between the extent of the continental shelf areas
appertaining to the coastal State & length of its coast measured in the general direction of the
coastline, account being taken for this purpose of effects, of any other continental shelf
delimitations between adjacent States in the same region.
Military and Paralimilitary Activities in and Against Nicaragua (Nicaragua v USA), Merits, Judgment, ICJ

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Reports, 1986, p. 14, para. 172-209
Court considers the question of law applicable to dispute. ‘In formulating its view on the significance of the US
multilateral treaty reservation, the Court has reached the conclusion that it must refrain from applying the multilateral treaties
invoked by Nicaragua in support of its claims.’
In determination of applicable law > must examine/ascertain consequences of this exclusion of applying
multilateral treaties to definition & content of international customary law. US contends that exclusion has
‘extremely wide ranging’ consequences. US contends that for purposes of present circumstance – lawfulness of use
of armed force – cannot not refer to what it considers to be the “ principle source of the relevant international law.” i.e.
United Nations Charter. US concludes that “since the multilateral treaty reservation bars adjudication of claims based on
those treaties, it bars all of Nicaragua’s claims.”
- ICJ has already commented on this line of argument by US > ‘The fact that…principles had been codified… in
multilateral conventions does not mean that they cease to exist & to apply as principles of customary law even as regards
countries that are parties to such conventions.’
- ICJ also points out that although two sources (UN Charter & customary int. law) are similar in many
respects, areas governed do not all overlap & substantive rules are not identical in content. For e.g. UN
Charter does not cover all aspects of the regulation of use of force in int. relations; & treaty itself refers to
pre-existing int. customary law with regards to the “inherent right… of an individual/collective self-defence,” in event
of armed attack.
- North Sea continental Shelf Cases > recognised existence of identical rules in int. treaty law & customary
law. However, even if appear identical, norms still retain a separate existence. These rules are also
distinguishable by reference to methods of interpretation & application.
US further argument: ‘the multilateral treaties in q contain legal standards specifically agreed between Parties to govern their
mutual rights & obligations, & conduct of Parties will be governed by treaties, irrespective of what Court may decide on customary
Court says that both sources have in common that flow from
law issue, because of principle of pacta sunt servanda.’
principle of outlawing force in int. relations and hence the differences which may exist the court does not see s
a bar to its jurisdiction/ does not see it to render its judgment ineffective.
Next Court must consider what the rules of customary international law are that are applicable to dispute.
Court has already stated ‘the material of customary int. law is to be looked for primarily in the actual practice & opinio juris of
States.’
- There is evidence showing certain agreement between Parties on content of customary int. law re non-use
of force & non-intervention. However the Court concludes that this is not in itself enough – Court must
satisfy that opinio juris & state practice are sufficient.
- State Practice > does not have to be ‘ in absolute rigorous conformity with the rule’; is sufficient that conduct is
generally consistent with such rule & non-compliance is seen/treated as a breach thereof.
 Therefore necessary for Court to determine content of rules re use of force in int. relations, applicable
to this dispute.
- International Law Commission > ‘great majority of int. lawyers today unhesitatingly hold that Art 2, Chapter 4 of provisions
of the Charter, authoritatively declares the modern customary law regarding the threat/use of force.’

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- The States adoption of General assembly Resolutions ‘(Declaration on Principles of International Law
concerning Friendly Relations & Co-operation among States in accordance with he Charter of the United
Nations’) is an indication of their opinio juris of customary int. law issue at hand.
- Another confirmation of rules validity as customary international law is that it is referred to by state
representatives as being such.
- International Law Commission expressed view: “the law of the Charter concerning the prohibition of the use of force in
itself constitutes a conspicuous example of a rule of international law having the character of jus cogens.”
- Generally Assembly resolution shows that prohibition of use of force, with the exception of the right of
individual & collective self-defence, is regarded as part of customary int. law.
- Court now has to define conditions that need to be met for exercise of individual/collective self-defence:
individual self-defence must be subject to the State having been the victim of an armed attack. “Armed
attack” = action by regular armed forces across int. border & ‘sending on/behalf of a State of armed bands, groups,
irregulars/mercenaries, which carry out acts of armed force against another State of such gravity as to amount to an actual
attach conducted by regular forces.’
- Court holds that in customary international law there is no rule ‘permitting the exercise of collective self-defence in
the absence of a request by the State which regards itself as the victim of an attack.’ Hence the State which is victim to
the attack must make a request. Furthermore Court found that in customary international law ‘it is not a
condition of lawfulness of the use of self-defence that a procedure (reporting to an international body ) so closely
dependant on the content of a treaty commitment… should have been followed. ’
 Enquiry by Court > whether is justification for activities in q, in the right to take counter measures to
the conduct of Nicaragua – which is not armed attack?
- Principle of non-intervention = ‘right of every sovereign State to conduct its affairs without outside interference.’ >
Principle is part of customary int. law > much evidence to support this is found in expressions of opinio
juris by States as to the existence of principle & by their est. & substantial practice thereof.
- Court considers 2 q’s in relation to principle:

1. What is the exact content of the principle? (ito of aspects of principle relvant to dispute, the principle
‘forbids all States… to intervene directly/indirectly in internal/external affairs of other States’ intervention must be on
matter which sovereign State has freedom to decide itself).
2. Is practice sufficiently in conformity with it for this rule to be a rule of customary int. law? (Court relies on
North Sea Continental Shelf Cases > in order for new customary int. rule to be formed the conduct must
amount to a “settled practice” & be accompanied by necessary opino juris. i.e. there must be ‘evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it.’)
- US’s conduct towards Nicaragua > US did not attempt to justify ito legal principles but rather only on a
political level. Attempted to justify only with ref to rules of ‘collective self-defence against an armed attack.’
Conclusion of Court:
- No general right of intervention ‘in support of an opposition within another state, exists in contemporary int. law.’
- ‘The acts constituting a breach of the customary principle of non-intervention, will also, if they directly/indirectly involve the use
of force, constitute a breach of the principle of non-use of force in international relations.’

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Anglo-Norwegian Fisheries Case (United Kingdom v Norway), ICJ Reports 1951, p. 116, p.124-131
[Customary international law]
The case concerned the validity, under international law, of the methods used to delimit Norway’s territorial
sea/fisheries zone. The United Kingdom requested the court to decide if Norway had used a legally acceptable
method in drawing the baseline from which it measured its territorial sea.
A Norwegian Decree of 1935 stipulated that Norway’s Fishery Zone be measured by a system contrary to
normal practice. The preamble to this decree justified it on the grounds of:
(i) ‘Well-established national titles of right’ (These related to the use of straight baselines in Norwegian decrees of 1869
and 1889 (thought for different parts of the coastline totalling only 89 miles) and acquiescence in that use by other
states)
(ii) ‘The geographical conditions prevailing on the Norwegian coast’ (that the coastline concerned is deeply indented by
sounds and, for part of its length (south of North Cape), if fronted by a fringe of islands and rocks that is difficult to
separate from the mainland).
(iii) ‘The safeguard of the vital interests of the inhabitants of the northernmost parts of the country’ (This ground is
explained in the court’s statement that ‘[i]n these barren regions the inhabitants of the coastal zone derive their
livelihood essentially from fishing’).
The United Kingdom argued that customary international law did not allow the length of a baseline drawn
across a bay to be longer than ten miles. Norway argued that its delimitation method was consistent with the
general principles of international law.
In other words, the method used by Norway to establish its ‘fishery zone’ was disputed by the United
Kingdom (the low water line versus the base line). The base line rule was adopted by several other states, but
Norway consistently refused to apply it. Norway had consistently applied its own rules and there was a
general tolerance by the other states to its practice. The court held that one state could establish a custom as
long as other states are tolerant towards the rule.
The first finding = the method employed by the delimitation of the fisheries zone by the Royal Norwegian
Decree is not contrary to international law. The court held that the delimitation applied in 1935 does not
infringe the general law, rather it is an adaption rendered necessary by local conditions.
The second finding = the baselines fixed by the said Decree in application of this method are not contrary to
international law.
 The method of straight lines, established in the Norwegian system, was imposed by the peculiar geography
of the Norwegian coast; even before the dispute arose, this method has been consolidated by a constant
and sufficiently long practice, in the face of which they did not consider it to be contrary to international
law.
 Historical evidence gave weight to idea of traditional rights reserved to the inhabitants of the Kingdom over
fishing grounds included in the 1935 delimitation… the court found that such rights, founded on the vital

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needs of the population and attested by very ancient and peaceful usage, may be taken into account in
drawing a line.
 The court considered this to have been kept within the bounds of what is moderate and reasonable.
The court held that the fact that the Norwegian practice had taken place consistently and for a sufficiently long
period without any objection to the practice from other states (until the dispute arose), indicated that the
other states did not consider the Norwegian system to be “contrary to international law”.
The ICJ’s approval of a new method for determining base lines arguably declared the existence of a rule of
customary law.
The Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, p. 226,
Para. 62-73, 92-97
[Customary international law]
The International Court of Justice was asked to decide whether the threat or use of nuclear weapons in any
circumstances is permitted under international law. The court was required to examine the customary
international law to determine whether a prohibition of the threat or use of nuclear weapons flows from
customary international law.
The court held that states had a general obligation to protect the natural environment against widespread,
long-term and severe environmental damage and were obliged to refrain from methods and means of warfare
which are intended, or may be expected, to cause such damage.
The court declined to find a rule prohibiting the use of nuclear weapons. It had to be shown that the constant
and uniform non-use was a result of a feeling of obligation on the part of the states generally, which was not
the case. Many states actually reserved the right to use nuclear weapons as part of a policy of deterrence.
 “Many states have recognized the need to liberate the community of States and the international public
from the dangers resulting from the existence of nuclear weapons.”
 “States which hold the view that the use of nuclear weapons is illegal have endeavored to demonstrate the
existence of a customary rule prohibiting this use.”
 On the other hand, some states “recall that they have always, in concert with certain other states, reserved
the right to use those weapons in the exercise of the right to self-defence against an armed attack
threatening their vital security interests.”
Therefore, some states believed that the continued non-use of nuclear weapons amounts to a customary
international law, while others believed that they have no binding force and are not declaratory of any
customary rule of prohibition of nuclear weapons.
The court concluded that the mere fact that nuclear weapons had not been used since 1945 did not signify the
understanding that their use was illegal and it said that it could not make a decision on the legality or illegality
of the use of nuclear weapons by a State.
Jurisdictional Immunities of the State (Germany v Italy: Greece Intervening) (paras 92-97)

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European Court of Human Rights- has not accepted proposition that States (under international law) are no
longer entitled to immunity in cases regarding serious violations of international humanitarian law or human
rights law (e.g. acts of alleged torture, general crimes against humanity)
Court concluded that under international customary law a state is not deprived of immunity because accused
of human rights violations (concerns only immunity of the State from jurisdiction of courts in other states)
The relationship between jus cogens and the rule of State immunity
Jus cogens rules always prevail over any inconsistent rule of international law- whether treaty or international
customary law
 Italy argued that the rule requiring one state to award immunity to another (the immunity from jurisdiction
of that state’s domestic courts) conflicts with jus cogens and must therefore be overruled
 The rule of immunity is procedural and concerns different matters to the jus cogen (substantive rather than
procedural rules) raised in this case (various rules including the rule against the deportation of civilians to
slave labour). Granting immunity does not recognise Germany’s actions during 1943-1945 as lawful or
unlawful (which the international law purports to do), it is simply a procedural matter of jurisdiction.
Therefore there is no conflict.
 The fact that a rule is a jus cogen does not give a court a jurisdiction which it otherwise would not have
under customary international law
Therefore, even if the proceedings in the Italian courts involved jus cogens they would still not have
jurisdiction over Germany
S v Petane 1988 (3) SA 51 (C) at 56-64
Issue
This case considered whether the Protocol I Additional to the Geneva Conventions of 1949 is applicable to
South Africa- a non-state party- under customary international law Protocol awards prisoner of war status to
combatants in an armed conflict, among others, against racist regimes in the exercise of their right to self-
determination
Court found
 When a rule is recognised by international law as forming part of international customary law- it will be
recognised by SA law
 In rapidly developing fields it might happen that states have a shared understand that a rule governs there
conduct  that rule can be created with very little (or no) practice to support it e.g. scientific invention or
space discovery
 BUT before becomes part of SA law needs to be widely accepted
However, resolutions or declarations cannot be described as usus giving rise to custom- may constitute opinion
juris but can only become customary law if that opino juris is expressed in regards to a rule sufficiently defined
by usus  has to be practiced before it can become customary international law
Resolutions or declarations cannot alone become international law without usus / repeated practice 
protects certainty of international customary law
Found that protocols do not represent a new rule if international customary law (no usus evident) and that
ANC and SWAPO are regarded by customary law as being entitled to prisoner of war status

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3. Chapter 5: SUBJECTS OF INTERNATIONAL LAW
The subjects of international law are those legal persons that have the capacity needed to exercise all the
rights, powers and duties under international law i.e. they are bound by IL and hold rights under IL.
In terms of domestic law, we are all legal subjects. However, this is not the same under IL.
States are the primary subjects of IL. They have the full complement of international legal capacities.
Traditionally, states were the only subjects of IL but certain other legal persons are now also recognised as legal
subjects under IL e.g. international organisations, individuals, corporations etc. These other legal persons do
not possess the same full range of international legal capacity as states do.
To treat other entities (besides states) as legal persons must be regarded as the exception and not the rule.
The opposite of a legal subject is a legal object- suffer the exercise of rights and power.
a. STATES
1. States as legal subjects and the definition of statehood:
 States are the primary subjects of international law. They are the only subjects of IL that possess the
full complement of international legal capacity.
 ‘Full international legal capacity
 Can undertake international legal obligations e.g. treaty- making power
 Bring claims for violations of its international legal rights
 Bearing international legal responsibility
 Immunity from jurisdiction of foreign states
 International legal personality- bear rights and duties under international law. International legal
capacities- the extent of the rights and duties afforded to the legal subject.
There is NO settled definition of statehood. Accordingly, a mere description must suffice, and, in this regard,
the provisions of article 1 of the Montevideo Convention on Rights and Duties of States (1933) are generally
taken as authoritative:
“The state as a person of international law should possess the following qualifications: (a) a permanent
population; (b) defined territory; (c) a government and (d) capacity to enter into relations with other
states”
These hallmarks form part of customary International Law. The state as a person of international law should
possess the following qualifications:
1. A permanent population
 There is no minimum population requirement. There are 50 states in the world that have a population
< 1m. E.g. Nauru has a population of approx. 10 000.
2. Defined territory
 There is no minimum territory requirement – if you have some territory it is sufficient.
 The boarders of the state do not need to be defined or uncontested (i.e. fixed) E.g. Israel
 This was confirmed in North Sea Continental Shelf: There was a dispute about the delimitation
of the continental shelf (area of seabed around the landmass) between Germany and Denmark

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and between Germany and the Netherlands. Denmark and Netherlands argued that the rights
of the costal State to its continental shelf areas were based on its sovereignty over the land
domain, of which the shelf area was the natural prolongation under the sea.
 The territory of the state does not need to be connected. E.g. Hawaii.
3. A government
 More problematic. The entity normally has to have a government that is in effective control of the
territory and free of outside interference. Thus, the government must be able to maintain some sort of
law and order.
 The reason for this requirement is that a state cannot carry out its IL duties without an effective
government.
 S v Banda (see below). A SA court attempting to defend the apartheid creation of
Bophuthaswana, held that no attention should be paid to international politics when the factual
criteria of statehood had been met.
 Abdi v Minister of Home Affairs (2011): ‘In respect of the characteristic of government: in order
to meet this requirements a state must have a government that is in effective control of its
territory, and that is independent of any other authority.’
4. Capacity to enter into relations with other states
 The meaning of this criterion is the most contentious. The territorial entity has to be legally
independent from any other state. If the state is subject to the authority and control of another state, it
is not a state.
 ‘Capacity to enter into relations’ = an entity’s legal and factual powers to conduct itself as an
independent sovereign without having to defer to any other state.
 E.g. When Liechtenstein sought admission to the League of Nations, the Assembly of the League
agreed that the country was widely recognised as a sovereign state BUT it noted that
Liechtenstein had delegated to its neighbours certain powers of sovereignty i.e. customs, postal
services, diplomatic representation and judicial matters. Thus, the Assembly held that
Liechtenstein was not in a position to discharge its international obligations.
 Relied on by the SCA in Abdi v Minister of Home Affairs (2011): The suggestion that a Namibian
deportation order precludes the SA authorities and courts from dealing with the case of a
Namibian deportee who is held in an inadmissible facility at a SA port of entry is untenable. If
correct, it would constitute an unwarranted administration intrusion into the affairs of a
sovereign state. A sovereign state has exclusive control over its territory. Foreign States may
exercise only such authority in its domain as may be agreed by international treaty. If one state
can carry out the international regulations of another state, it will not be independent and thus
cannot carry out IL duties. SA is clearly a sovereign and independent state. Thus, the appellants
are within this country and are entitled to the protection of its laws.
 Austro- German Customs Union Case (see below). Minority judgment: test of independence is
whether the entity in question was legally dependent on another and thus subject to another.

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If the territory satisfies all four requirements, it will obtain the status of statehood. However, certain new
requirements have been suggested in addition to the Montevideo criteria.
1. Human rights/ democracy
 EC Declaration on Guidelines on the Recognition of New States in Eastern Europe and the Soviet Union
(1991): The declaration provided that it would not recognise any state unless it complied with certain
basic human rights and established a government. This guideline was not followed strictly by the
European community and thus did not pass into customary IL  no opinio iuris nor widespread
practice. E.g. Europe recognised Bosnia when there were clear human rights infringements.
2. Self- determination
 This has been NB in terms of recent practice of the acquisition of statehood.
 All people have the right to control their political future. Overtime it has become widely accepted that
the principle of self- determination meant that colonized states had to be given a choice as to whether
they wanted to remain colonized or to gain independent. This is part of customary IL and was
confirmed by the ICJ in Western Sahara Case (see below).
 The issue was whether the principle of self- determination was enough for the colonized states to
become recognised states or whether they also had to satisfy the four Montevideo criteria. State
practice shows that when a colonized state exercises self- determination by voting in independent, the
principle has a ‘curative effect.’ Thus, some of the Montevideo criteria were applied but in a much less
stringent matter.
3. Legality of means of acquisition of statehood
 If a territorial entity satisfies all of the Montevideo criteria but it is established by unlawful means, it
will not be recognised as a state under IL. E.g. If a state is established by violating a prohibition on the use of
force, it will not become a state under IL even if it satisfies all the other requirements e.g. Primia.
2. Types of states:
(a) Composite States

At least two different types of composite state may be distinguished:
1. A federation is formed when two or more entities associate in a permanent union that has central
government organs with authority over both the member states and the citizens of those states
2. A confederation is an entity in which a number of states are linked by treaty in a union, with central
governmental organs and certain specified powers over its members, but not over the citizens of those
members
- Each member state retains its sovereignty, so the confederation lacks a separate legal personality
(b) Microstates, colonies and non-self-governing territories
Some small territories have such limited control over their own affairs that they cannot be regarded as full
subjects of international law. Although nominally sovereign, these entities are linked to their larger neighbours
in relationships of dependency. In other words, microstates, as entities, have independent organs of
government, but they are subject to the sovereignty of a parent state
- Example – the Isle of Man (All British Crown dependencies)

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As far as non-self-governing territories are concerned, a General Assembly Declaration stated that states were
obliged to – transfer all powers to the peoples of those territories (example – British Virgin Islands).
‘Colony’ has no exact meaning in international law. The term is generally taken to mean overseas territories
rules by a metropolitan power. Commonly, it refers to territories and their inhabitants subjected to the political
control of a metropolitan state by means of conquest, occupation or treaty.
The 1960 General Assembly Declaration also speaks of ‘trust territories’. These were a species of dependency
that replaced the mandate system established under the League of Nations. The day-today administration of
the countries annexed after WWI, was to be exercised by certain ‘mandatory’ states.
Three categories of mandate were established:

- Category A – these states were thought to have reached a stage of development at which
independence could soon be granted – they were provisionally recognized as states
- Category B – these territories had no legal capacity
- Category C – they were so remote, sparsely populated, or small in size that they were administered
under the laws of the mandatory
After WWII, all A mandates were given independence, except for South West Africa
The B and C mandates were placed under the new UN trusteeship system. Under the UN trusteeship system,
trust territories classified as either strategic or non-strategic. This system is defunct as no more of these types
of territories exist today
(c) The Holy See and the Vatican City

From the sixth century CE, the Pope exercised secular control over most of central Italy, an area known as the
Pepal States. Italy recognized the sovereignty of the Holy See over the Vatican City and in internal affairs, the
Holy See agreed to surrender fugitives from justice to Italian authorities.
A distinction must be drawn between the Vatican City and the Holy See:
- The Vatican City is the territorial entity that came into existence with the Lateran Treaty, and the Holy
See is the episcopal (bishops) domain of the Catholic Church.
(d) Failed States

The status of ‘failed state’ has not, as yet, an established position in international law, but it is a term that is
commonly being used in state practice. It is clear, however, that a failed state, cannot fulfil some or all of the
basic responsibilities of a sovereign.
The key factor to a failed state is the disintegration of structures of central government over a territory. The
failure of a government has international consequences:
1. A refugee problem
2. The failed state has no reliable person or body capable of representing it internationally.
3. A power vacuum is created, potentially destabilizing neighbouring states
4. The issue of liability for violations of IL also arises
According to the International Law Commission:
- ‘The conduct of a person or group of persons shall be considered an act of the State under IL if the person
or group of persons was in fact exercising elements of the governmental authority in the absence or default

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of the official authorities and in circumstances such as to call for the exercise of those elements of
authority’
- The State cannot be held liable for offences committed by private individuals
3. Recognition:
The issue of statehood arises only when it is claimed by a new entity. Other states then have to decide whether
to acknowledged its status which is done through an act of recognition.
Recognition = a legal acknowledgement by one state that another territorial entity qualifies as a state under
international law.
E.g. South Sudan and Palestine have recently been recognised as states.
A. Forms of recognition:
 Express recognition – a state issues a formal statement
 Implied recognition – the intent to recognise has to be inferred from conduct e.g. allow Palestine to
open an embassy
 Collective recognition – a group of states makes a join declaration of intent or permits a new entity to
become party to a multilateral treaty of a political nature. E.g. only states may join the UN, thus
admission of a state to the UN is taken to be an act of collective recognition of statehood.
Non-recognition
- In order to protest against an offensive act, recognition may be deliberately refused
- A new obligation has been formed in a ius cogens: states have a duty not to recognize situations arising
out of serious breaches of peremptory norms of international law binding erga omnes
- This duty now finds support in the ILC Draft Articles on the Responsibility of States for Internationally
Wrongful Acts (2001)
De facto and de jure recognition

- In order to compromise between a refusal to recognize and an irrevocable grant of recognition, a
practice of ‘de facto’ recognition has developed
- There is no legal effect – apart from de facto recognition can be withdrawn
B. Duty to recognise?
 States do not have to recognise other foreign states (even if they have fulfilled the statehood criteria.
States do also not have to have diplomatic relations with any other state.
 The acts of recognition are voluntary.
C. Theories of recognition:
The theories aim to determine whether or not a state has to be recognised by other states to be a state under
international law.
There are 2 theories:

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1. Declaratory Theory: A state exists under IL as soon as it has satisfied the criteria of statehood.
Recognition is not necessary – it serves only to acknowledge the state’s existence.
S v Banda – this case also affirmed the declaratory theory of international law. A state can be a state
even before it is recognised
2. Constitutive Theory: Recognition is fundamental and essential for a state to exist as a state under IL. A
state does not achieve statehood until it has been recognised by other states. This approach is based on
the understanding that IL is founded on the consent of states. The problem with this approach is that
unrecognized entities have no responsibility for their actions under IL. E.g. According to this theory
Palestine was not a state until recognised by the UN General Assembly.
Which reflects State practice? The declaratory theory is more widely accepted in practice and in academic
practice. There are logical problems with the constitutive theory e.g. if some states recognise a territorial
entity as a state and other do not, it will be a state for only those that recognised it as a state. Recognition is a
voluntary act, thus it does not make sense to say that a state’s legal status depends on something that is not
actually a requirement.
Effect of recognition
Although an entity may claim to be a state only when it has met the requirements of statehood, one school of
thought contends that recognition is a necessary and additional element for statehood.
- One of the many problems with this theory is that unrecognized entities have no responsibility for their
actions under international law.
- Furthermore, there are no rules for how many states should recognize the entity, whether recognition
by interested parties should be discounted or whether recognition by more powerful states should be
given greater weight.
- These problems are avoided by the declaratory theory – which proposes that a state comes into
existence simply by fulfilling the objective criteria of statehood.
Recognition of governments
Once a state has been recognised, it follows from the notion of sovereignty that the type of government and
the way in which it came into power are matters of domestic concern. By implication, changes in government
have no effect on a state’s legal personality.
- The constitutional transfer of power from one party to another does NOT create a new government,
because of the legal fiction that governmental authority remains continuous
- Radical revolutions may suggest a different approach – they were generally distrusted and led to the
withholding of recognition.
- Recognition nowadays may be implied, unless a statement to the contrary is made.
- Although the policy no doubt works to the advantage of governments in the international sphere, it leaves
domestic courts uncertain about when they should grant locus standi to new regimes or take cognizance of
their laws
Recognition of belligerents and insurgents

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In the case of a civil war, the rebels may intend either to secede from or to overthrow the existing government.
If the first aim is successful, the question arises of whether to recognise a new state. If the second aim is
achieved, then the question is recognition of a new government. In principle, any form of official contact with
the rebels before they come to power constitutes an illegal intervention in the domestic affairs of a foreign
state.
- Recognition of a rebel group is deemed to be premature and unlawful, unless three criteria have been met:
1. A government or military organization must have been established
2. The rebellion must have developed beyond the stage of being a mere revolt
3. The rebel government must control a reasonable portion of the parent state
- This practice has largely been abandoned by states.
- Municipal courts must now make their own determination of the validity of governmental acts performed
by such groups based on the facts of each case and the international status of the regime in question.
- The practice of recognizing liberation movements has ceased in the wake of the General Assembly
Resolution on Human Rights and Terrorism (1993)
Effect of recognition in municipal courts

(i) Constitutive effect
- The effect of recognition is always constitutive for municipal courts
- Thus, in the courts of a state withholding recognition, a non-recognized entity has no locus standi
- The British courts were forced to admit some exceptions though for private parties for example
- English and American law now contains a body of jurisprudence in favour of upholding the acts of
unrecognized governments when the rights of private individuals are concerned
(ii) The problem of competing authorities
- The courts have held that the de facto authority was competent within the limits of the area under its
control, whereas the de jure government remained competent to deal with all matters arising outside that
area
(iii) Retroactivity
- Once a regime is recognized, all its lawful acts, from the date that it came into being, are deemed valid and
enforceable
D. Duty not to recognise:

 In order to protect against an offensive act, recognition may be deliberately refused  collective non-
recognition.
 E.g. America’s policy towards the Japanese invasion of China in 1932. Stimson, the Secretary of State,
declared that the USA would not recognise any treaty entered into between China and Japan that
impaired Chinese sovereignty or territorial integrity  Stimson Doctrine.
 The League of Nations affirmed the Stimson Doctrine by not recognizing Manchukuo as a state.
 If a territorial entity establishes a state contrary to a ius cogens rule, the state is NOT established and all
other states are under a duty NOT to recognise it as a state.
 The peremptory norms thus far invoked in UN practice are the probation on: aggression (Iraq’s invasion
on Kuwait in 1990); the acquisition of territory by force (Israel’s annexation of East Jerusalem);
systematic racial discrimination and suppression of human rights (Rhodesia and Bantustan ‘States’) and
denial of self- determination (Rhodesia, Namibia and Bantustan ‘states’).
Recognition does play an important role, even though it may not be a requirement.

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S v Banda 1989 (4) SA 519 (BGD) at 539-546

Friedman J
 Examined authorities on merits of constitutive & declaratory theories; Concludes that declaratory theory = the
more valid & acceptable of two for following reasons:
- ‘It is objective, & considers the requisites of statehood & sovereignty, on well-est. criteria of Int. law. That is a
State has sovereignty if possesses following:
1. A permanent population;
2. A defined territory;
3. Government; and
4. Capacity to enter into relations with other States.’
- Constitutive theory contains variables rooted in political, ideological & economic motives hence this cannot
be basis for determining existence of a legal entity.
- Constitutive theory is largely subjective & therefore if apply it to the determination of status of a new int
entity, lead to vagueness & uncertainty.
- Says that constitutive theory would lead to anomalous position > An entity may exist as a State for those
states that have recognised it as such, but at the same time won’t exist for those that haven’t.
- Practical effect of constitutive theory would be > int States would use their own independent judgment to
determine whether new entity exists or not & this cannot be so b/c ‘A State which meets the requirements
of int law does not depend on agreements, recognition & concession.’
- ‘The concept of recognition is devoid of any principle of uniformity, & is basically inconsistent.’
- Ito customary int law, declaratory theory finds support in Montevideo Convention > & entities satisfying
requirements thereof should be granted recognition.
 Accept that declaratory theory is in accordance with principles of customary int law re. Montevideo convention,
therefore in order to determine whether Bophuthatswana conforms to requirements of a State (& hence to
determine its status), need to look at requirements in Convention & determine whether are met/not.
 Status of Bophuthatswana:
1. A permanent population:
- Min population is NOT prerequisite for statehood.
- Has a permanent & stable population, therefore satisfies this requirement.
2. A defined territory:
- No min geographical size is required.
- ‘Even if a State’s territorial boundaries are not defined with precision,/are disputed in certain respects, the
requirement of territory may be satisfied.’
- Also satisfies this requirement.
3. Government:
- Necessary condition of statehood = est. of an effective government. This government must be independent
of any other authority & must have legislative & administrative ability & capacity.
- Bophuthatswana is not subject to any external authority, has est. own Con by which it governs its people;
there are democratic elections; has a Legislative Assembly; A democratically elective Executive president (&
his Ministers); has various courts; army; air force etc. > ‘ Generally the instruments of government which
exist in a modern democratic State are present.’
- ‘The Government of Bophuthatswana exercises, ito its Consitution, de jure control of the country, & acts &
functions as a sovereign Government.’

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- Therefore satisfies this requirement of statehood.

4. The capacity to enter into relations with other States:
- Only at present recognised by SA & is not a member of UN.
- Dugard argues that by virtue of this non-recognition is does not meet requirements of a sovereign
independent State. Friedman J points out that Dugard follows constitutive theory & that he conceded to it
possibly qualifying as a State under declaratory theory.
- Friedman J disagrees with Dugard – does not accept constitutive theory.
- Friedman J states that Bophuthatswana does have capacity to enter into relations with other states (but
hasn’t thus far been given opportunity to do so) > has Foreign Minister & dept. of Foreign Affairs & an
infrastructure that gives it capacity & ability to do so.
- Says that fulfilment of criterion rests on recognition BUT that having fulfilled all other requirements of
statehood should not be regarded as not having capacity to enter into relations with other States merely on
the basis that it has been denied the opportunity to demonstrate this capacity/ability.
 Concludes that ito declaratory theory & Montevideo Convention, Bophuthatswana has all necessary attributes
of statehood & therefore ito customary int. law qualifies as a sovereign independent State.
 Looks to some of Dugards other arguments:

- Dugard ‘an entity does not qualify as a state, notwithstanding that it has the attributes of statehood
expounded in the Montevideo Convention, if its creation is a result of the violation of a peremptory norm of
int law (jus cogens).’
Friedman J on this argument > ‘I cannot agree with, nor accept the doctrine of jus cogens concerning the q
of recognition/non-recognition… non-recognition is immaterial, provided norms of int law which I have
accepted have been complied with.’ Says further that on Dugards’ submission on ‘peremptory norms of int
law having the character of jus cogens’, he says 3 aspects are essential to it: ‘1. The prohibition of aggression;
2. The prohibition of systematic racial discrimination & apartheid; 3. The prohibition of the denial of self-
determination.’ Friedman J says even if you do apply these for the purposes of Dugards’ argument,
Bophuthatswana meets the categories anyway.
- Dugard: Resolutions of the UN voice disapproval of the creation of Bophuthatswana.
Friedman J > Resolutions of General Assembly are frequently disregarded & do not have any legal force/not
binding; ‘To argue that by the creation of Bophuthatswana SA was perpetuating its apartheid policy is
unrealistic & manifestly incorrect.’
 Hence concludes that Bophuthatswana is a sovereign independent State; ‘To ignore the sovereignty of
Bophuthatswana is a way of dismissing reality in favour of political advantageousness & convenience.’
Austro-German Customs Union Case, Advisory Opinion, PCIJ Reports, Series A/B, No. 41 (1931), Individual
Opinion of Judge Anzilot
THIS OPINION HAS TO DO WITH THE SOVEREIGNTY OF AUSTRIA (SPECIFICALLY, IT’S LIMITATION BY ART 88 OF THE TREATY
OF SAINT-GERMAIN)
 The question of this opinion is whether the conclusion of a Customs Union with Germany on the basis and within
the limits of the Protocol of March 19 th, 1931, is among the acts from which Austria must abstain otherwise than
with the consent of the Council of the League of Nations
 Thus, the applicability of Article 88 of the Treaty of Saint-Germain and the Geneva Protocol is relevant in this
opinion

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 Art 88 says that ‘the independence of Austria is inalienable otherwise than with the consent of the Council of the
League of Nations’
 ‘Consequently, Austria undertakes in the absence of the consent to abstain from any act which might directly or
indirectly or by any means whatever compromise her independence, particularly, and until her admission to
membership of the League of Nations, by participation in the affairs of another Power’
 Anzilotti remarks that this provisions origin is from the Treaty of Versailles
 He says that this article was not adopted in the interests of Austria, but rather in the interests of Europe as a
whole, as it was intended to secure Austria’s independence – it imposes on her only obligations, it grants her no
rights
 The meaning and scope of ‘independence’ and ‘inalienable’ is then defined

 Independence is taken to mean that Austria has sovereignty
o Thus Anzilotti declares Austria is an independent state because it has sovereignty
 Inalienable is taken to mean that Austria must not voluntarily lose her existence as an independent State
otherwise than with the consent of the Council of the League of Nations
 We must determine which acts apply to this provision of losing its existence as an independent state
 The German Austrian Governments argued that the acts from which Austria must abstain are acts which alienate
her independence or which can be assimilated to an alienation of independence
 Anzilotti thinks that this is INCORRECT for the following reasons:
o 1. He says that it is a fundamental rule of interpretation that words must be given the ordinary meaning
which they bear in their context unless such an interpretation leads to unreasonable or absurd results
o Taken from this rule, Anzilotti concludes that the acts in question cannot only be acts amounting to
alienation of independence because the ordinary meaning of ‘compromise’ is certainly not ‘to alienate’
o 2. Another reason Anzilotti gives is from the rule that when there are two interpretations, one of them
attributing a reasonable meaning to each part of the text and the other not fulfilling these conditions,
the first must be preferred
o Thus, we cannot accept the Governments arguments – because that would result in the second sentence
of the article being superfluous
o 3. Anzilotti says that Art 88 itself furnishes definite evidence that the acts referred to include not only
acts of alienation of independence
o This evidence comes from the phrase, ‘until her admission to membership of the League of Nations, by
participation in the affairs of another Power’
o It is any act which might expose Austria’s independence to danger
 The foregoing seems to indicate two kinds of acts from which Austria is to abstain
o 1. Acts of alienation of independence
o 2. Acts which, while leaving Austria her independence, would have the effect of exposing that
independence to danger
 The Geneva Protocol:
 As regards the first paragraph of Part II of the Protocol, it has not been disputed that it corresponds exactly to
the first part of Art 88
 The second paragraph must be closely examined
 Anzilotti concludes that it is only a particular application of Austria’s obligations under Art 88 – ‘not to grant a
special regime or exclusive advantages’ – thus not to compromise her independence in the economic sphere
 Anzilotti thinks that this prohibition is covered by the more general one in Art 88

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 Thus, considering the two conditions of acts laid down in Art 88, Anzilotti comes to the conclusion that the
Austro-German Customs Union must be considered a fact which might compromise Austria’s independence
within the meaning of Art 88 – because economic dependence (of Austria on Germany) might lead to political
unity – which would obviously danger Austria’s independence
 Thus – Austria is obliged to abstain from the Customs Union or it must ask for the consent of the Council of the
League of Nations
Western Sahara, Advisory Opinion, ICJ Reports 1975, p. 12, paras. 54-59
THIS OPINION IS ABOUT NON-SELF GOVERNING TERRITORIES AND THE PRINCIPLE OF SELF-DETERMINATION
 One of the main purposes of the UN is to ‘develop friendly relations among nations based on respect for the
principle of equal rights and self-determination of peoples…’
 Thus, the subsequent development of international law in regard to non-self governing territories, made the
principle of self-determination applicable to all of them
 The principle of self-determination and its application for the purpose of bringing all colonial situations to a
speedy end, were enunciated in the Declaration on the Granting of Independence to Colonial Countries and
Peoples, General Assembly Resolution 1514 (XV)
 This resolution provided the basis for the process of decolonization which has resulted since 1960 in the creation
of many states which are today members of the UN
 This resolution contemplates for non-self governing territories more than one possibility, namely to:
o Emerge as a sovereign state
o Have free association with an independent state (must be a free and voluntary choice)
o Have integration with an independent state (must be a freely expressed wish)
 General Assembly Resolution 2625 (XXV), also states that these states can emerge into any political status freely
determined by a people
 Note, the validity of this principle of self-determination is not affected by the fact that in certain instances the GA
has dispensed with the requirement of consulting the inhabitants of a territory
o Those instances included when the population did not constitute a ‘people’
o Or on the conviction that a consultation was totally unnecessary, in view of special circumstances
b. OTHER INTERNATIONAL LEGAL PERSONS
Non-state international legal persons

 Traditionally, states were the only subjects of IL but certain other legal persons are now also recognised
as legal subjects under IL e.g. international organisations, individuals, corporations and non- self-
governing territories.
 However, just because they have legal personality, this does not been that they have full international
legal capacity. These other legal persons will have a limited range of international legal capacities.
 Objective v subjective international legal responsibility:
 Objective (erga omnes- in relation to everyone)- granted by general IL and bind everyone in the
law. States have objective international legal personality.
 Subjective (consenting states only)- only relate to the states that recognise it. They are only IL
persons for states that recognise them.

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International organisations
International organisations are the second most NB international legal person. They have the widest legal
capacities in relation to other legal persons. This was established in Reparation for Injuries Suffered in the
Service of the United Nations Advisory Opinion: (see below for full case summary)
 This was the first case to recognise that non- states could have international legal capacity.
 “[T]he Court’s opinion is that fifty States, representing the vast majority of the members of the
international community, had the power, in conformity with international law, to bring into being an
entity possessing objective international personality and not merely personality recognised by them
alone, together with capacity to bring international claims.”
 International legal personality and capacities is determined by the functional test.
 The ICJ held that the UN did possess international legal personality. It looked at the functional needs of
the UN and held that: (1) it would not be possible to achieve its functions if states decided to to give it
international legal personality; and (2) state practice showed that states treated UN as if it did have
international legal personality.
 The court held that the UN had objective international legal personality – not only in relation to its
member states, but also to all other states. It could bring a claim against a non- member state.
 The court distinguished between legal personality and legal capacities. It held that just because the UN
has international legal personality, it does not mean that it has all the capacities of a state.
* The UN has the widest range of international legal capacities in terms of organisations, but it does not have
full international capacity (only a state has full international capacity).
Individuals
What is the status of individuals? Are we directly bound by international law? Do we have duties and can we
bring claims ourselves to other states if our international rights are violated.
Traditional approach:
 Traditionally, individuals were regarded as objects, and not subjects of IL. Thus, they did not bear right
and duties under IL. E.g. If there was a breach of an international law that affected an individual, the
state would bring the claim on behalf of the individual. It was believed that it was for the state to make
diplomatic representation on behalf of its citizens.
Progression of human rights law:
 The progression of human rights law means that humans were becoming the bearers of an increasing
number of right and duties. This does not mean that individuals have become the subject of
international law as the individual is not directly bound or given rights under IL. IL is directed as binding
the state, rather than binding the individual.
 However, there are some exceptions where individuals are given rights under IL. E.g. European
Convention on Human Rights directly gives individuals a right to bring a claim against a state that
violates international treaties. * Individuals only have these rights because states have consented to
them.
 The rights are derivative from states as the primary subjects of IL.

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International criminal law:

 The same can be said of the limited scope of duties under IL. Individuals are given some duties under
international criminal law that directly bind them. However, states are the gate keepers.
There is a growing move of recognizing rights and duties on individuals under international law BUT it is as a
derivative. Thus, one cannot really say that individuals are the subjects of IL in the same way as states.
Corporations
 Corporations are essentially in the same position as individuals. They are given rights and duties under
International Law but they are dependent on being granted by the states. They are derivative from
states as primary subjects of International Law.
 General rule: no international legal personality
 No treaty- making capacity.
 Cannot bring claims for violations of international law.
 Corporations can be directly bound by international criminal law.
The most important thing about a corporation is its state of nationality. States have established some
mechanisms that allow corporations to directly bring claims. However, just because they are given particular
rights, doesn’t make them subjects in international law – they are still dependent on being decided by states.
Non-self governing territories and national liberation movements

 National liberation movements do have some form of international legal personality. They directly bear
a right to self- determination under IL (Western Sahara Case) – this gives them a right to remain a non-
self governing territory or to become independent.
 National liberation movements have a more limited form of international legal personality. They have
an UN permanent observer status – less than membership, but gives certain rights e.g. Palestine
Liberation Movement and UNGA Resolution (1974).
 International legal capacities of national liberation movements include:
 Treaty- making capacity (unlike individuals and corporations)
 Bear rights and duties in international humanitarian law
Entities Sui Generis (one of a kind)

Entities one of a kind. The primary examples of these are the vatican and the Sovereign Order of Jerusalem and
Malta. They exist but cannot be classified as any of the above.
E.g. Vatican City (2 citizens, no territory but claims to be a city), Sovereign Order of Jerusalem and Malta
 Not a state, not an international organisation, not an individual and not a national liberation
movement.
 They are given some measure of international legal personality by some states that expressly recognise
those capacities. They only exist to the states that agree to them existing  subjective legal
personality.
They are treated as state even though they don’t satisfy the requirements.

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We have moved away from the purely traditional idea that states are the only ones who possess international
legal personality. We are increasingly moving towards the system where individuals are given some sort of
international legal personality. However, the states are still the gatekeepers. States are the only full
international legal personalities.
Reparations for Injuries Suffered in the Service of the United Nations, Advisory Opinion, ICJ Report 1949,
p.174, p.176-186
Facts:
On the 17th September 1948, Count Bernadotte, a Swedish National, was killed (allegedly by a private gang of terrorists)
in the city of Jerusalem. The new city was then in Israeli possession. This was before Israel was a member of the United
Nations. Count Bernadotte was the Chief United Nations Truce Negotiator in the area. In the course of deciding what
action to take in respect of his death, the United Nations General Assembly sought the advice of the I.C.J. Israel was
admitted to the United Nations on May 11th 1949 shortly after the Court gave its opinion.
Legal question:
Does the United Nations have the capacity to bring a claim against Israel in its own capacity and on behalf of
the actual victim?
Reasoning:
In its Advisory Opinion, the Court begins by reciting the circumstances of the procedure. The Request for Opinion was
communicated to all States entitled to appear before the Court; they were further informed that the Court was prepared
to receive information from them. Thus, written statements were sent by the following States: India, China, United States
of America, United Kingdom of Great Britain and Northern Ireland and France. In addition, oral statements were
presented before the Court by a representative of the Secretary-General of the United Nations, assisted by counsel, and
by the representatives of the Belgian, French and United Kingdom Governments.
The court held the following:

- First, the United Nations is an international person, with rights, responsibilities and the ability to bring international
claims. This is because it was intended to exercise and enjoy rights and functions, which could only be enjoyed if it
had limited legal personality. The court said the members of the United Nations had clothed it with legal personality
but only to the extent required to perform its functions.
- Second, the United Nations has the rights to bring a claim against Israel on its own behalf, as its functions could not
effectively be discharged if it did not.
- Third, the United Nations has a right to bring claims on behalf of the actual victim, as this is necessary for the
exercise of its functions:
 Its agents may suffer injuries that would not justify their home states making claims.
 To ensure independence of the agent, which is essential to him performing his job, he needs to have assurance
of the protection of the United Nations.
- Fourth, the United Nations has a right to claim when the defendant state is not a member of the organisation. This is
because the fact that the overwhelming majority of states created the United Nations means that it has objective
legal personality.
- Finally, how can the United Nations’ right to claim be reconciled with the victim’s home country’s right to claim?

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 First it can be done by agreement between the United Nations and the aggrieved country on a case-by-case
basis.
 Second, if the victim is a citizen of the defendant state, the claim will be in his capacity as a member of the
United Nations, not a member of his home country.
Answer to the legal question:

Yes, the United Nations does have the capacity to bring a claim against Israel in its own capacity and on behalf
of the actual victim.
c. Chapter 8: INCIDENTS OF SOVEREIGNTY: SOVEREIGN IMMUNITY
1. Introduction
The principle of sovereign equality implies that one state may not exercise power or authority over another. It
follows that individuals or entities representing their states abroad are not subject to the jurisdiction of foreign
courts. Hence, according to the traditional doctrine of sovereign immunity, domestic courts could not make a
sovereign party to legal proceedings against its will, whether those proceedings involved due process against
the sovereign’s person or property.
Immunity could be claimed only in the case of sovereign acts – not in the case of commercial acts.
Jurisdictional Immunities of the State Case – the International Court of Justice affirmed the traditional position
that state immunity for sovereign acts is not a matter of mere comity between states, but a rule of customary
international law derived from the principle of sovereign equality.
The Schooner Exchange v McFaddon 7 Cranch 116 (1812) US Supreme Court

This case concerns the issue of state immunity – whether a state can be impleaded before the courts of another state
without its consent. There used to formally be a rule of absolute immunity. Now, as a result of the increased trading
activities between states, many states have moved in their practice to a doctrine of restrictive immunity – a foreign state
is allowed immunity for acts of imperial authority only.
Facts:
A French naval vessel was forced to enter the port of Philadelphia due to bad weather conditions. The libellants, who
sought possession of the ship, claimed that it belonged to the schooner Exchange, an American ship which they owned
and which was seized by France in 1810 in accordance with a Napoleonic decree. The United States Attorney-General
filed a suggestion to the effect that the court should refuse jurisdiction on the ground of sovereign immunity.
Legal issue:
Is the schooner Exchange, a national ship of war, viewed as being exempted from United States jurisdiction?
Reasoning:
The court held that by maritime custom, a nation’s ports were presumptively open to all friendly ships.

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The jurisdiction of the nation within its own territory is necessarily exclusive and absolute. The court argued that it would
be inconvenient and dangerous if individuals did not owe temporary and local allegiance, and were not amenable to the
jurisdiction of the country. However, the court put forth that it is different in respect of public armed ships.
The court held that the Exchange – being a public armed ship, currently under the control and supervision of a foreign
power, who at the time of the ships entry into the United States territory, was at peace with the United States – must be
viewed as having entered the states territory under an implied promise that which in such an environment, they would
be exempt from the jurisdiction of the country.
The court concluded that the implied license under which such vessel enters a friendly port, may reasonably be
construed, and it seems in court ought to be construed, as containing an exemption from the jurisdiction of the
sovereign, within whose territory the ship claims the right of hospitality.
Outcome:
The court, interpreting customary international law, held that the vessel in question was exempt from United States
jurisdiction.
2. Persons representing their states
Heads of state have always been considered the principal representatives of their countries. They are,
therefore, deemed by international law to have plenary powers to bind their states in international relations.
Historically, foreign ministers were regarded as the chief assistants to heads of state, and they too have plenary
powers in all matters within the scope of their office. The office of prime minister is a relatively recent
institution, and, in the constitutions of several states, such as South Africa, it does not exist.
3. Immunity ratione personae
Senior office holders representing their states abroad must be granted immunity from the jurisdiction of other
states, both in respect of their persons and their property. In South Africa, the office holders entitled to this
immunity are specified in the Diplomatic Immunities and Privileges Act, where it is provided that in accordance
with rules of customary international law, heads of state, special envoys and representatives of foreign states
are immune from the civil and criminal jurisdiction of the courts of the Republic.
In the same way that foreign sovereigns, as persons, enjoy immunity, so do the constituent elements of a state;
in other words, the organs of government.
Uncertainties are normally voided by entering into treaties to settle the status of armed forces operating
abroad.
The Foreign States Immunities Act defines ‘foreign state’ to include the government of that state and any
department of that government.
- While an entity that is a separate, self-governing body is prima facie not a branch of government, it is
nonetheless entitled to claim sovereign immunity if it is controlled by the state.
- The Act further provides that separate entities are immune from the jurisdiction of South African courts
only if: proceedings relate to anything done by the separate entity in the exercise of sovereign authority
and the circumstances are such that a foreign state would have been so immune.
4. Immunity ratione materiae

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a. Commercial contracts and the difference between absolute immunity and relative immunity
The early approach to sovereign immunity was ‘absolute’: once an entity had been identified as an organ of
state, both it and all the property it owned, leased or otherwise controlled enjoyed immunity. The problem
that arose was that in these circumstances, purely commercial relationships attracted immunity merely
because the government had become involved by ratifying an undertaking, taking control of the entity in
question or allowing it to exercise state functions.
By the 1960s, most Western nations had come to adopt a doctrine of ‘restrictive immunity’: if a state engaged
in a commercial venture, it could be sued on the same basis as any other litigant. Immunity was reserved for
sovereign acts. South African law followed the wake of the developments in the West, and some years later
the Foreign States Immunities Act was passed.
- Section 2 lays down the basic proposition that foreign states are immune from the jurisdiction of South
African courts
- Section 3 contains rules on waiver
- Sections 4 to 9 provide exceptions to the general rule. Immunity does not apply to commercial
transactions.
- The more usual way of distinguishing sovereign acts from commercial acts is to look at the nature of the
act in question. However, determining the nature of the act may be far from easy.
b. Employment contracts
The Foreign Sates Immunities Act generally allows the South African courts to exercise jurisdiction in cases
concerned with employment contracts between individuals and foreign states.
c. Property
Section 14(3) of South Africa’s Foreign States Immunities Act provides that the property of a foreign state may
not be subject to any process for the enforcement of a judgment or an arbitration award unless the state gives
written consent or the property concerned was ‘in use or intended for use for commercial purposes.’ Further
exceptions are provided for any interests in immovable property situated in South Africa, and intellectual
property.
d. Delict
Under the South African Act, immunity does not apply in the case of actions for damages for the ‘death or
injury of any person’ and ‘damage to or loss of tangible property’, provided that the acts or omissions in
question were committed in the Republic.
e. Mass violations of human rights
When actions are brought on the basis of mass violations of human rights, a conflict begins to emerge
between the immunity defence and the universal jurisdiction a state is entitled to exercise over international
criminal offences. State officials should not be allowed to escape liability for gross violations of human rights
simply because they occupied senior positions in government.
The success of an immunity defence depends on the nature of the suit as criminal or civil. In the case of a civil
action, two critical factors must be considered:
1. Whether the offence was committed within the forum state

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2. Whether a gross breach of human rights or war crime is to be deemed a private, rather than an official
act.
I Congresso del Partido

Facts:
I Congresso ship owned by the Cuban government was arrested in British waters on application of the plaintiffs
(Chilean owners of the cargo of the Playa Largo and Marble Islands) who had instituted proceedings in the English High
Court for breach of contract (non-delivery) and in tort (for detinue or conversion). Cuban government entered a defence
of state immunity. Went on appeal to House of Lords.
Playa Largo and Marble Islands (ships):
 Cuban state trading enterprise entered into contract to sell sugar to Chilean company
 One shipment carried on the Playa Largo – flying Cuban flag and owned by the Cuban gov and operated by a
Cuban state trading enterprise (Mambisa) under Cuban law these state trading enterprises are legally
independent form the gov and not departments of the gov
 Chilean socialist government was overthrown by a right-wing group (the Cuban government disproved) so it
ordered the trading company not to drop the cargo off in Chile sold it to someone else
 Marble Islands carried the rest of the shipment Somali flag, chartered by Mambisa under instruction by Cuban
government (ordered by Mambisa not to sail to Chile, but to North Vietnam instead during the journey it
became a Cuban ship owned by the Cuban gov)
 In Vietnam sold to another Cuban state trading enterprise and donated to North Vietnamese people
Court
 Restrictive doctrine should be applied- question is the limits of this doctrine
Two main foundations of this doctrine:
1. Interests of justice individuals entering into commercial transactions with states- to allow them to bring these
transactions before the courts
2. Requiring a state to answer a claim based on such a transaction does not involve a challenge to any act of
sovereignty or government act of that state- neither a threat to dignity of the state or any interference with its
sovereign function
 Essential question: what is the relevant act?(whether state has immunity from jurisdiction of other states for
claims in terms of this act)
 Should not look at the motive or purpose of the state activity (reasons for the breach of contract) should look
at the nature of the transaction or resulting legal relationship
 Depends on whether state has acted in exercise of its sovereign authority (public law) or like a private person
(private law)
 Not always easy to separate state’s trading and government activities
Under restrictive doctrine:
1. Court has to characterise the activity into which the state defendant has entered
2. If found to be activity of commercial or private law, one can assume prima facie that contractual breaches or
torts fall within same sphere of activity
3. Defendant state will then have to make the case that the act complained of (breach of contract) is outside that
commercial sphere

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 Court has to look at whole context in which claim against the state is made AND decide whether the relevant
acts upon which the claim is based should be considered as fairly within an area of private law character (in
which the state has chosen to engage) OR the sphere of governmental or sovereign activity
Playa Larga  engaged int trade with consent of the Cuban government; but decision (in broader context) not to offload
the cargo in Chile was of a political nature and for non-commercial reasons. But these political choices inevitably follow
from the entry of the state into the commercial trading field (cannot grant immunity every time a state took a political
decision in a commercial transaction) restrictive theory would be rendered useless and unable to protect private
traders against politically inspired breaches
Claim for immunity was dismissed in respect of both ships
 Test for distinction between ius imperil (sovereign act-immunity) and iure gestionis (commercial venture/act- no
immunity)– nature of the act in its context and not its purpose (motive)
 Have to look at more than just the nature of the contract but also the nature of the act of breaching it. If the
contract itself is an act Iure imperii (there is immunity) BUT even if it is a contract iure gestionis (no immunity) a
defence of immunity may succeed if the act of the breach of contract itself is an act iure imperii
Trendtex Trading Corp v Central Bank of Nigeria (Court of Appeal)

Issue: whether the Bank of Nigeria could raise the defence of state immunity and whether it was a department of
government or an independent commercial enterprise
Facts
1975- Central Bank of Nigeria issued letter of credit in favour of a Swiss company (Trendex) for price of cement to be sold
by Trendex to an English company which had secured a contract with the Nigerian Government to supply it with cement
to build army barracks.
Under instructions by Nigerian gov bank refused to honour the letter of credit  Trendex brought an action against
the Bank in the English High Court
Motive: The government was trying to extricate itself from the Nigerian Cement Scandal created by its predecessor
government
Court
Lord Denning M.R.:
• Central Bank of Nigeria claimed it was entitled to state immunity- could not be sued in English court
• Doctrine grants immunity to foreign government or its department of state or any body which can be reared as an
“alter ego or organ” of the government
• Some governments set up separate corporate or legal entities which are under the complete control of a
governmental department – by which to enter into commercial transactions, just like any ordinary trading concern
(whereas some departments conduct all their business from their offices)
• The difference in internal arrangements should not affect the availability of immunity in int/l law government
departments should be entitled to immunity even if they conduct business through separate legal entities
• Certificate of ambassador- saying whether or no organisation is department of state- of much weight but not
decisive
• Main test: functions and control of the organisation based on all evidence available
Bank of Nigeria:

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 Has government functions: safeguards int/l value of the currency, acts as banker and financial advisor of the
government etc.
 Affairs are under a great deal of government control  Federal Executive Council may overrule the board of
directors on banking policy
 Has very few private customers, acts mainly for states within the Federation and other banks within Nigeria and
abroad
Found on the whole that the Bank of Nigeria should not be considered a department of the Federation
Shaw L.J. 
 whether or not organisation can be considered a department of government depends on its constitution, its
powers, duties and activities
 Set up in terms of the central Bank of Nigeria Act as a BANK  makes no mention of any other role
 Have to consider third parties who enter into transaction with a body that appears to be purely commercial
they should be aware of the risk of contracting with a body who may be able to claim state immunity
 Found the Bank not to be entitled to immunity based on its roles, powers, duties, constitution etc.
 Court agreed that doctrine of restrictive immunity applied

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Chapter 9: DIPLOMATIC PRIVILEGES AND IMMUNITY
1. Introduction:
In medieval times, the sovereigns of Europe maintained relations with one another through ad hoc missions
and the occasional meetings of princes. By the fifteenth century, however, the increase of inter-state dealings
required the adoption of a more regular method of communication. Gradually sovereigns began to imitate the
practice of the Holy See, which regularly sent and received resident embassies. By the seventeenth century,
most European states had permanent diplomatic representatives abroad.
A considerable body of customary law subsequently developed to regulate the sending and receiving of
diplomatic missions, as well as their status while abroad.
- Through the work of the ILC, these rules were finally codified in the Vienna Convention on Diplomatic
Relations (1961).
- Two years later, the Convention was followed by the Vienna Convention on Consular Relations (1963).
- These two Conventions were incorporated into South African law by the Diplomatic Privileges and
Immunities Act.
- Article three of which lists the functions of diplomats:
1. Negotiating agreements with receiving states;
2. Acting as state representatives for ceremonial occasions, and carrying out the sending state’s
policies in the receiving state;
3. Reporting on significant events occurring in the receiving state, and endeavouring to create
goodwill for the sending state;
4. Protecting the interests of any nationals of the sending state who happen to be in the receiving
state.
2. Persons entitled to represent their states:
A diplomatic mission may include a large number of people performing a range of different functions. Official
and non-official personnel must accordingly be distinguished.
Official staff include all the persons employed by the sending state or the head of the mission – the military,
commercial, cultural and technical and the clerical staff (administrators, secretaries, interpreters, etc.)
Non-official personnel include the servants of the embassy or legation, such as the chauffeurs, gardeners and
domestic staff.
 In the past, only the great powers exchanged full ambassadors, but, after the Second World War, this
custom changed.
 It is usual for states to exchange diplomatic representatives of the same rank.
 Countries in Europe used their own system of ranking at first, but then agreed on a permanent order
applicable to all states.
- Ambassadors accredited to heads of state, and the other heads of missions of equivalent rank, occupy
the first grade.
- Envoys, ministers and the internuncios accredited to heads of state occupy the second
- The third is for persons who act in the absence of their heads of mission and are accredited to the
foreign ministers of the receiving states.
States are free to choose whether to be represented abroad. Some states content themselves with
representation through the mission of a friendly third party.

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3. Creation and termination of diplomatic missions:
Creation
Once the decision to establish diplomatic relations has been made, a representative must be selected by the
sending state and accepted by the receiving state. The receiving state has no obligation to accept the person
proposed. Hence, before an appointment can be made, the sending state must seek the receiving state’s
approval for its nominee.
- Having obtained the receiving state’s approval, the head of the mission is given letters of credence,
which must be presented to the head of the receiving state.
- The receiving state may decide to terminate a particular diplomat’s term of office by declaring him or
her persona non grata.
Termination
- If hostilities break out between the sending and the receiving states, passports are delivered to their
respective diplomats to indicate that the missions are terminated.
- Diplomats are then allowed safe passage back to the country which sent them.
- Recognition of a new state may imply the extinction of a predecessor state, and thus the termination of
that state’s diplomatic mission.
- Similarly, a mission will terminate when one of the heads of state ceases to exist.
4. Consuls
Historically, the office of consul preceded that of ambassador.
Two species of consul existed:

1. Consules missi – career consuls – were sent by and paid by their sovereigns, and were citizens of the states
they represented.
2. Consule selecti – usually resident in the host cities, and were elected by fellow citizens.
In either case, consuls are officials representing the sending governments. They can be distinguished from
ambassadors who represent one head of state to another.
The consular ranks are as follows: consul-general, deputy consul-general, consul, vice consul and consular
agent.
Diplomatic missions conduct political relations between states. Consuls traditionally manage economic,
cultural and social relations. Hence, their primary functions are to issue passports and visas, promote trade
and cultural ties, and provide assistance to nationals of the sending state.
In the large missions, the strict distinction between diplomatic and consular services is nowadays often
blurred, but, because of the technical difference between diplomatic functions and consular functions,
different rules of immunity apply.
Because consuls are not diplomatic representatives, they are not accredited to foreign governments.

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If a state has few significant interests to protect, it may appoint a local individual to represent it on a part-time
basis. Such representatives are known as honorary consuls, and their privileges are more limited than those of
career consuls.
A consul’s main functions are listed in article 5 of the Convention:

• Protecting the interests of the sending state and its nationals
• Promoting trade and the development of economic and cultural relations
• Reporting on the economic and cultural life of the receiving state
• Issuing passports and visas
• Representing the nationals of the sending state before the courts of the receiving state
• Acting in a semi-judicial capacity to wind up deceased estates, dispose of corpses and marry nationals of
the sending state
• Supervising and inspecting vessels having the nationality of the sending state
If the conduct of a consular official gives ground for serious complaint, the receiving state may notify the
sending state that the individual in question is persona non grata.
5. Representation and international organisations:
International organisations are the product of treaties, and the powers of their representatives in member and
non-member starts may be specified in the relevant constitutive agreements or may develop through accepted
practice.
Nationals of a state may either be officials in or delegates to an international organisation. Such persons do not
represent their states – they are deemed to be servants of the institution in question, and, by virtue of their
office, they may not take instructions from their home states.
Representation of member states in international institutions must be distinguished from their representation
at such institutions.
6. Diplomatic privileges and immunity:
In the early days of diplomatic representation abroad, sovereigns were free to treat the envoys of a foreign
state in any manner they saw fit, but, if envoys of the sending state experienced unjust treatment, those of the
receiving state could find themselves treated in the same way. Hence, the threat of reciprocal treatment was
the basis of protection for diplomats abroad rather than international law. It was only by the seventeenth
century that diplomatic immunity came to be recognised as a legal obligation.
Today’s approach to diplomatic immunity is purely functional, implying that this privilege is granted to ensure
that diplomats can effectively perform their duties.
Immunity commences once the person in question arrives in the receiving state. Before diplomatic privileges
can be claimed, the individual in question must be duly accredited by the sending state, and must, in turn, be
accepted by the receiving state.
In principle, diplomatic immunity ceases when a mission terminates.
Immunity obviously applies to acts performed by diplomatic personnel in the course of their duties, and it
continues in respect of those acts after an individual has vacated a post. Immunity for private acts undertaken

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while the individual was working at the post, however, ceases upon the expiry of the time stipulated for the
individual to settle his or her affairs upon contemplation of duties.
Immunity may be lost by waiver. In this regard, the right of waiver vests in the sending state, not the individual.
7. Content of diplomatic privileges and immunity:
Diplomatic immunity exempts diplomats and the staff of diplomatic missions from the jurisdiction of the
receiving state’s courts. It does not mean, however, that they are free to ignore the laws of the receiving state.
Diplomatic agents are obliged to respect the laws and regulations of the receiving state.
Diplomatic immunity has the following main elements:

1. Immunity from legal process
2. Immunity from personal molestation by the authorities of the receiving state
3. No liability to pay direct taxes to the receiving state
4. Exemption from certain kinds of social legislation in the receiving state, such as the duty to do military
service or to contribute to social security benefits
5. Certain special privileges to enable diplomatic staff to perform their duties effectively
6. Inviolability of the premises of the diplomatic mission, together with its documents
7. Immunity of diplomatic correspondence from seizure, search or censorship
8. Diplomatic asylum:
The granting of diplomatic asylum to political fugitives is a common practice in Latin America, where it is
regulated by various bilateral treaties. Aside from this region, there are no generally applicable rules on the
question, although, in special emergencies, states may and often do provide sanctuary for political offenders of
receiving states.
9. Consular immunity:
Consuls do not enjoy the full range of immunities accorded to diplomats, but they are entitled to certain
limited immunities of their own.
1. They are immune from the local and criminal administrative jurisdiction of the courts of the receiving
state for acts which they perform in their official capacity.
2. The official archives and correspondence of consuls are inviolable, and so too is all correspondence
with the sending state.
3. The parts of the consular premises used for consular functions are immune from local jurisdiction.
10. Special missions:
Special missions are temporary delegations sent to foreign states to undertake specific tasks or to address
specific questions.

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4. RELATIONSHIP BETWEEN INTERNATIONAL AND MUNICIPAL LAW
a) The International Position
“The Place of International law in South African Municipal Law” by J Dugard
There are two main approaches to the relationship between international law and municipal law, namely the
monist and the dualist.
In other words, there are two basic theories in relation to the relationship between international and domestic
law:
The monist school –

 Maintains that international and municipal law, far from being essentially different, must be regarded as
manifestations of a single conception of law.
 International law can be applied by domestic laws automatically – when it applies because it is
automatically a part.
 Monists argue that municipal courts are obliged to apply rules of international law directly without the
need for any act of adoption by the courts, or transformation by the legislature.
 International law is incorporated into municipal law without any act of adoption or transformation – the
monist position is often described as lending support to a ‘doctrine of incorporation’.
 Monists have been compelled to accept that the whole body of international law binding on a state cannot
be directly applied by municipal courts  the harmonisation theory – qualifies the absolute monist
position by acknowledging that in cases of conflict between international and municipal law, the judge
must apply his country’s own jurisdictional rules. This means that customary international law is to be
applied directly as part of the common law, but that conflicting statutory rules and acts of state may prevail
over international law.
 Inconsistent with traditional theories about state sovereignty.
International law Domestic law
The dualist school –

 See international law and municipal law as completely different systems of law, with the result that
international law may be applied by domestic courts only if ‘adopted’ by such courts, or transformed into
local law by legislation.
 International and municipal law differ so radically in the matter of subjects of the law, its sources and its
substance, that rule of international law can never per se become part of the law of the land; it must be
made so by the express or implied authority of the state.
 Rules of international law must be transformed into domestic law.

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Optional
International
Domestic law
law
The undeniable fact is that international law today is applied in municipal courts with more frequency than in
the past. In doing so, the courts seldom question the theoretical explanation for their recourse to international
law.
Domestic law in International Courts:

• Domestic law is not a justification for breach of international obligation
 Alabama Claims Arbitration Decision (1872) – this case is about the selling of warships. There was an
obligation of neutrality though, so britain said they would sell the ship, then afyer give the weapons. The
court held that the British not rely on its domestic law for the breach of an international law.
 Fisheries case (UK v Norway 1951)
 Avena case (Mexico v USA 2004) – Mexicans were sentenced to death without being able to talk to
consular officials. The Mexicans said that the US should go back and re-litigate, the US said that their
constitution could not interfere with their own states. The ICJ said that this does not absolve them from
international liaiblity.
 Even a constitutional law – Polish Nationals in Danzig (1931); Cameroon v Nigeria (2002)
 Art. 27 VCLT
You cannot rely on domestic law to justify a breach of international law. That is not to say that domestic law is
completely irrelevant: Article 38(1) of the ICJ Statute
1. Domestic laws can represent state practice.
2. Domestic laws can show what the general principles of law are.
3. Domestic laws can also be relevant for judicial decisions.
4. Domestic law can also be evidence of a state’s compliance with international law.
The role of international law in South African domestic law:

When international law can be applied in domestic law, either directly or indirectly through influencing
interpretation.
International law is given a special place in the South African Constitution.

- Section 231 – treaties in domestic law
- Section 232 – customary international law in domestic law
- Section 233 – interpreting domestic law compatibly with international law
- Section 39 – interpreting the Bill of Rights compatibly with international law

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Ngcobo CJ in Glenister v President of the RSA (2011) para.97:

“Our Constitution reveals a clear determination to ensure that the Constitution and South African law are
interpreted to comply with international law, in particular international human rights law. ...These provisions of
our Constitution demonstrate that international law has a special place in our law which is carefully defined by
the Constitution.”
International law can be directly applicable in the domestic legal systems – enforce rules of international
treaties and customary international law.
International law can be used indirectly to influence how we interpret legislation or provisions of the
constitution.
CUSTOMARY INTERNATIONAL LAW DIRECTLY APPLICABLE IN DOMESTIC LAW:

 S.232 Final Constitution: “Customary international law is law in the Republic unless it is inconsistent with
the Constitution or an Act of Parliament.” South Africa takes a modest approach to customary intenrational
law and is automatically a part of south african domestic law, unless it is contrary to the Constitution.
 This approach was established in Trendtex Trading Corp Ltd v Central Bank of Nigeria (1977) – UK Court of
Appeal, Lord Justice Denning
 Nduli v Minister of Justice (1978) (pre-constitutional situation) confirmed the automatic application of
customary law into domestic law. Before the final constitution, rules of customary international law had
the same status as domestic law. Rules of cusotmary international law are now superior.
Thus, it is generally, automatically applicable.
What constitutes customary international law for the purposes of South African domestic law (proof of
customary international law)
 Higher standard in SA to prove what constituted cusotmary international law
- Nduli v Minister of Justice – there had to be universal acceptance of a rule in order for it to be
customary international law.
- S v Petane (1988) – the Nduli decision was wrong and South Africa was still applying the same standard
for the estblishment of customary intenrational law as the other legal systems.
 There is no system of precedent in customary international law, but there is in domestic law. Doctrine of
precedent applicable?
- Trendtex – accepted the fact that regular rules of precedent do not apply to customary international
law.
- Kaffraria Property Co (Pty) Ltd v Government of the Republic of Zambia (1980) – the decision of Trandex
was upheld.
Essentially, South African courts have to ask what the rules of customary international law are.
Treaties directly applicable in domestic law
Treaties are more complicated when dealing with the direct application. Unlike customary international law,
the constitution says that treaties have to be transformed in order to make them directly enforceable. South
Africa, therefore, takes a dualist approach to treaties, mainly due to the separation of powers.
These two questions must always be kept separately – a treaty that doesn’t bind SA internationally will never
be applicable domestically, for example.

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1. The question of whether the treaty binds South Africa internationally? Whether the executive has signed
up to it and whether the treaty has been ratified, if this is necessary.
2. Whether a treaty that binds South Africa internationally, can be directly enforced by South African
domestic courts? This refers to the domestic role of the treaty – has the treaty been transformed or is it
self-executing?
Section 231
(1) The negotiating and signing of all international agreements is the responsibility of the national executive
(2) An international agreement binds the Republic only after it has been approved by resolution in both the
National Assembly and the National Council of Provinces, unless it is an agreement referred to in
subsection (3)
(3) (An international agreement of a technical, administrative or executive nature, or an agreement which
does not require either ratification or accession, entered into by the national executive, binds the Republic
without approval by the National Assembly and the National Council of Provinces, but must be tabled in
the Assembly and the Council within a reasonable time
(4) Any international agreement becomes law in the Republic when it is enacted into law by national
legislation; but a self-executing provision of an agreement that has been approved by Parliament is law in
the Republic unless it is inconsistent with the Constitution of an Act of Parliament
First question: when do treaties bind South Africa in the international sphere?
 Executive signature and approval of the legislature
- Section 231 requires that the executive sign up to a treaty and requires the treaty to be approved by
parliament s.231(1) (signs) + s.231(2) (must be ratified in order to be binding on SA internationally)
 Exception – section 231(3) – parliamentary approval is usually required, BUT there is an exception. There is
a small category of treaties that don’t need to be approced but will still be internationally binding.
- Art.11-15 Vienna Convention on the Law of Treaties – how to determine wherhter a treaty needs
ratification – you look to intention.
- Cameroon v Nigeria (2002) –
- There is no case law on this section. It is somewhat unclear as to which treaties require approval and
which treaties are automatically accepted. There is, therefore, a lack of clarity as to the scope of section
231(3). The ultimate test is all abut the intention.
Treaties generally require parliamentary approval, but there is an exception.
Which treaties don’t have to be approved by parliament in order to be binding in the international sphere?
When are treaties part of South African domestic law?
 S.231(4)
 Generally must be transformed by Legislature
- Mohamed DP in Azapo v President of the RSA (1996)
- E.g., Implementation of the Rome Statute of the International Criminal Court Act (2002)
 Exception: self-executing treaty provisions
- US Supreme Court in Medellin v Texas (2008)
o Re. ICJ decision in Avena
- Quagliani v President of the RSA (2008) (High Court)
- Goodwin v Director-General of the Department of Justice and Constitutional Development (2008) (High
Court)
- President of the RSA v Quagliani (2009) (CC)
- Likely factors:

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o Specific treaty obligations

o Domestic law needn’t be altered to allow implementation of treaty provisions
o Must not be inconsistent with Constitution or any Act of Parliament
When treaties are applied directly in domestic courts
Once it is determined that the treaty is binding in the international sphere, the question is whether it is binding
on South African domestic law.
Section 231(4) requires an act of legislative transformation to make it a part of domestic law.
– Mohamed DP in Azapo v President of the RSA (1996)
– E.g. Implementation of the Rome Statute of the International Criminal Court Act (2002)
– E.g. takes all crimes prohibited in the ICC treaty and makes them crimes in the South African domestic law.
A treaty that is transformed has the status of the national legisltion it was enacted by e.g. Parliament.
– Once implemented, courts can enforce that treaty in the same way as they enact any act of Parliament.
Exception: most treaties require national implementing legislation. However, there is an exception.
Self-executing treaties:
- Do not need to be transformed in order for courts to be able to enforce them directly. They can be
enforced by courts without any need for impelenting legislation.
- Huge debate and confusion about what constitutes such a treaty.
– US Supreme Court in Medellin v Texas (2008) – court dealing with issue whether decisions of the ICJ
were automatically enforceable in the US domestic legal system. The court split 4 (not self-executing) to
3 (self-executing)
– Re. ICJ decision in Avena
There are, however, factors that help us to determine theis issue:

1. The more specific treaty obligations, the more likely it is to be self-executing.
2. Domestic law must not need modification in order for the treaty obligation to be enforced. Much more
likely to be self-executing when it does not need modification.
3. Must not be inconsistent with Constitution or any Act of Parliament
South African CC on the issue: mostly deal with self-executing status of extradition treaties.
– Leading case Quagliani v President of the RSA (2008) (High Court) – not self-executing and not proper to
be in the South African Constitution.
– Goodwin v Director-General of the Department of Justice and Constitutional Development (2008) (High
Court) – was self-executing but did not provide reasons why.
– These two cases were joined in CC and CC said the question need not be answered. Not deemed
essential to the question before them.
Argument: court could have held that the US-South African extradition treaty was self-executing – seems all
the factors are satisfied  obligations clear and specific, did not need modifications, not inconsistent.
INDIRECT APPLICATION:

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Interpretation of domestic legislation:
Section 233 Final Constitution:

• “When interpreting any legislation, every court must prefer any reasonable interpretation of the legislation
that is consistent with international law over any alternative interpretation that is inconsistent with
international law.”
- Strong obligation of interpretation
- Must adopt interpretation that brings international law into domestic law.
• Glenister v Republic of South Africa (2011) (CC) – s 233 demands any reasonable interpretation that is
consistent with international law when legislation is interpreted.
• Progress Office Machines v SARS (2008) (SCA)
Interpretation of domestic legislation:

Section 233 builds on a common law presumption that existed before the CC came into force.
• Pre-1994 common law presumption – govenrment didn’t intend to legislate contrary to international law,
unless the words of the legislation indicated this contrary intention.
- Binga v Cabinet for South-West Africa (1988), citing Lord Justice Diplock in Solomon v Commissioners of
Customs and Excise (1966):“If the terms of the legislation are not clear, however, but are reasonably
capable of more than one meaning, the treaty itself becomes relevant, for there is a prima facie
presumption that Parliament does not intend to act in breach of international law, including therein
specific treaty obligations; and if one of the meanings which can reasonably be ascribed to the
legislation is consonant with the treaty obligations and another or others are not, the meaning which is
consonant is to be preferred.”
- Section 233 builds common law presumption into the Constitution.
Binding and non-binding international law? What constitues international law for the purposes of section 233?
- Only international law that is binding on South Africa in the international sphere.
- Binding: Sources: treaties signed and ratified and customary international law – court has to look at
treaties to which SA is a party and customary international law.
- Courts cannot directly apply treaties that haven’t been implemented into South African law but can
impact the interpretation of domestic legislation.
- Not binding: where SA hasn’t signed up to the treaty.
Interpretation of the Bill of Rights:
Section 39(1)(b) Final Constitution

 “Must consider” international law. The obligation in section 39(1)(b) is, therefore, a weaker interpretive
obligation. They can diverge from international law.
 S v Makwanyane (1995) (CC): “We must bear in mind that we are required to construe the South African
Constitution, and not an international instrument or the constitution of some foreign country, and that this
has to be done with due regard to our legal system, our history and circumstances, and the structure and
language of our own constitution. We can derive assistance from public international law and foreign case
law, but we are in no way bound to follow it.”
- Emphasized that Bill of Rights does not necessarily need to follow international law.

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 S v Williams (1995) (CC): “The Constitution requires us to ‘have regard’ to [the international consensus
regarding the meaning of the prohibition of torture]; we are not bound to follow it but neither can we
ignore it.”
- CC noted that the word of the prohibition in the Bill of Rights echoed the prohibition of torture.
- When interpreting the Bill of Rights, the Constitution required that they have regard to international
law, but the court was not bound to follow it.
* Courts don’t think that they are bound to follow international law, at this point.
Binding and non-binding international law? What constitues international law for the purpose of section 39(1)
(b)?
- Binding: treaties signed up to
- Non-binding: treaties not signed up to.
- Courts can look at binding and non-binding international law when interpreting the Bill of Rights. Still
international law for the purposes of interpreting the Bill of Rights.
- International law something to be followed but not something that they have to abide by.
- Any source of law can be brought into section 39(1)(b). If the source binds SA in the international
sphere, it is given more weight in terms of interpretation.
• Makwanyane – both binding and non-binding international law can be brought into the intepretive
obligation.
• Republic of South Africa v Grootboom (2001) (CC) – the weight to be attached to international law will vary.
Binding sources are given more interpretive weight under section 39(1)(b).
Glenister – treaties brought in not to be directly enforced but for interpretive purposes.
“That the Republic is bound under international law to create an anti-corruption unit without appropriate independence
is of the foremost interpretive significance in determining whether the state has fulfilled its duty to respect, protect,
promote and fulfil the rights in the Bill of Rights, as Section 7(2) requires. Section 7(2) implicitly demands that the steps
the state takes must be reasonable. To create an anti-corruption unit that is not adequately independent would not
constitute a reasonable step. In reaching this conclusion, the fact that section 231(2) provides that an international
agreement that Parliament ratifies ‘binds the Republic’ is of prime significance. It makes it unreasonable for the State, in
fulfilling its obligations under section 7(2), to create an anti-corruption entity that lacks sufficient independence.This is
not to incorporate international agreements into our constitution. It is to be faithful to the Constitution itself, and to give
meaning to the ambit of the duties it creates in accordance with its own clear interpretive injunctions. To conclude that
the Constitution requires the state to create an anti-corruption entity with adequate independence is therefore intrinsic
to the Constitution itself.”
(Para.194-195, majority judgment)
 Recent decision of the CC that looks at all of these issues in a lot of detail.
 The majority goes through the different roles that international law can play in South Africa.
 Challenged the constitutionality of the legislation in terms of the hawks. Was the new Hawks unit
sufficiently independent from the Legislature to satisfy the requirements of the Bill of Rights? It was found
no.
 The majority held that section 7(2) requires the state to take positive steps that are reasonable.
 Obligation in 7(2) includes an obligation on the state to establish an anti-corruption unit, independent of
the state.
 How to determine this? Looked at SA international law obligations. Court relied on standards set out in
treaties that were binding on SA in the international sphere.

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 Placed a lot of emphasis on the fact that these treaties were binding on SA in the international sphere.
 The fact that they were binding in international sphere, should be given great influence in deciding what
amounts to a reasonable and effective step for SA to take.
 Emphasized that they were not transforming treaties into domestic law – giving international law treaties
the interpretive role.
 Reliance on international law was required in terms of the Bill of Rights. Given the interpretive significance
that the constitution required.
 Held: Hawks were insufficiently independent because they did not meet international standards.
 This was controversial because there was a dissenting judgment: international law given far too much
emphasis. Majority used international obligations to create new constitutional obligations to establish anti-
corruption unit. Focused on arguing the majority decision would give international treaties the same status
as constitutional obligations.
 What constitutes an interpretation and what oversteps that line between interpretation and creation.
This case emphasizes that international obligations can have a big impact through section 7(2) of the Bill of
Rights.
Section 39(2) – “When interpreting any legislation, and when developing the common law or customary law,
every court, tribunal or forum must promote the spirit, purport and objects of the Bill of Rights.”
 This includes international law - the case law has brought international law into this provision of the
Constitution. When interpreting spirit, purport and objects of the Bill of rights, must look to international
law to determine the principles underlying the Bill of Rights.
• Carmichele v Minister of Safety and Security (2001) (CC) – clear that the court, when developing the
common law under s 39(2), was considering the common law.
• The courts look to both binding and non-binding international law in terms of section 39(2).
• This is another indirect tool of the application of international law.
• Binding and non-binding?
Textbook notes:
Roman-Dutch law:
 The attitude of Roman-Dutch law to international law: Grotius saw international law and municipal law as
components of a universal legal order premised on natural law. He drew no clear distinction between
international law and municipal law, and certainly did not regard international law as a foreign legal system.
 Roman-Dutch law writers generally accepted Grotius’s approach to the nature of law and consequently
drew no sharp distinction between international law and municipal law.
 Under Roman-Dutch Law, international law formed part of municipal law.
After the British occupation in 1806, the Cape retained Roman-Dutch law as its common law, and this common
law was in due course accepted by the other colonies and states in Southern Africa. This meant that
international law remained part of the common law of South Africa and was applied directly by the courts
without any statutory incorporation.
Anglo-American law:
 Before 1994, South Africa’s constitutional system was modelled on that of Britain.
 Consequently. South African courts frequently turned to English law, rather than Roman-Dutch law, for
guidance on questions of public law, including public international law.
 English law treats customary international law as part of municipal law.

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South Africa before 1994:

Customary international law:
 For over a hundred years, South African courts simply assumed that the rules and principles of customary
international law might be applied by municipal courts as if they were in some way part of South African
law.
 South African courts showed strong support for the monist approach. In other words, the view was that
international law formed part of their law.
 As customary international law is a species of common law it was subordinate to all forms of legislation.
Treaties and municipal courts:

 Treaties, in most instances, did not become part of municipal law without some act of legislative
transformation.
The new constitutional order:

The 1993 and 1996 Constitutions:
 Previous South African constitutions made no mention of the place of international law in the South
African legal order.
 Both the 1993 and 1996 constitutions remedied this omission to ensure that international law has a special
place in our law.
Customary international law:

 South African common law treats international law as part of municipal law.
 Customary international law is no longer subject to subordinate legislation.
 Common law rules and judicial decisions are now subordinate to customary international law as it is only
the Constitution and Acts of Parliament that enjoy greater legal weight.
Proof of customary international law:

 It is still necessary to turn to judicial precedent to decide which rules of customary international law are to
be applied and how they are to be proved.
 Courts may take judicial notice of international law as if it were part of our own common law.
 International law does not require universal acceptance for a usage of states to become a custom.
 The rules of customary international law binding on the Republic shall, unless inconsistent with the
constitution or Act of Parliament, form part of the law of the Republic.
Treaties:
 Before 1994, South Africa followed the dualist approach to the incorporation of treaties.
 While the executive retained its power to negotiate and sign treaties under the Interim Constitution, the
National Assembly and Senate were required to agree to the ratification of an accession to treaties.
 The Interim Constitution suggested that all treaties signed by the executive were to be ratified by
parliament.
Three principal methods are employed by the legislature to transform treaties into municipal law:
1. The provisions of a treaty may be embodied in the text of an Act of Parliament.
2. The treaty may be included as a schedule to a statute.
3. An enabling Act of Parliament may give the executive the power to bring a treaty into effect in
municipal law by means of proclamation or notice in the Government Gazette.
Summary of the place of treaties in our law:

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- An international agreement that has been ratified by resolution of Parliament is binding on South Africa on
the international plane.
- And failure to observe the provisions of this agreement may result in South Africa incurring responsibility
towards the other signatory states.
- An international agreement that has been ratified by Parliament under section 231(2), however, does not
become part of our law until and unless it is incorporated into our law by national legislation.
- An international agreement that has not been incorporated in our law cannot be a source of rights and
obligations.
Self-executing treaties:
 Self-executing treaties are treaties that automatically become part of municipal pal, and enforceable by
municipal courts, without any act of legislative incorporation.
 Scholars as well as judicial decisions have expressed divergent views on self-executing treaties.
 Section 231(4) makes it clear that for a treaty to become law in South Africa it must be enacted into law by
national legislation unless it is self-executing.
 If full meaning is to be given to section 231(4) it is essential that the courts consider the issue of
determining self-executing in a manner which promotes harmony between South Africa’s international
obligations and its municipal law.
The national executive and the making of treaties:

 Section 231(1) confers on the ‘national executive’ the responsibility for the making of treaties.
 The President, as head of state and head of the national executive, may be given the power to enter into
treaties, such as extradition treaties, in terms of a specific Act, but he is obliged to act in a collaborative
manner in exercising this authority.
International agreements or treaties:

 The 1996 Constitution like the interim constitution, uses the term ‘international agreement’ instead of the
more commonly used term ‘treaty’.
 This creates uncertainty as there is strong support for the view that the term ‘international agreement’ is
wide enough to include both legally binding agreements and non-binding, unenforceable, informal
agreements.
 The prevailing view is that the term ‘international agreements’ is synonymous with ‘treaty’ and refers to
legally binding, enforceable agreements.
Requirements for an international agreement:

1. Agreement between states
2. In writing
3. The state parties intend it to be governed by international law
Resolutions of international organisations:

 Resolutions of international organisations are not treaties, and in most instances, they are not binding on
member states.
 If South Africa wishes to translate such a resolution into municipal law, it must do so by legislation.
Statutory (including constitutional) interpretation with special reference to human rights:

 The 1996 Constitution reveals a clear determination to ensure that the Constitution and South African law
are interpreted to comply with international law, particularly in the field of human rights.

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1. Common law presumption requiring a court to interpret legislation in compliance with international
law.
2. The Bill of Rights is subjected to a special interpretive regime which pays particular attention to
international law.
 Since the establishment of the new constitutional order in 1994, both the constitutional courts and
ordinary courts have shown a great willingness to be guided by international human rights law.
 Different considerations apply in respect of a treaty to which South Africa is a party but has not been
incorporated into municipal law.
 As South African courts are given the power of judicial review of legislation under the 1996 Constitution it
is inevitable that international law will be invoked not only as a guide to statutory interpretation but as a
challenge to the validity of legislation (whether a direct or indirect challenge).
 There is no escape from the manifest constitutional injunction to integrate international law obligations
into our domestic law.
 An increasing number of statutes refer expressly to international law and some make it clear that the
statute is to be interpreted to accord with international law.
Hierarchy of treaties in municipal law:
The Constitution is the supreme law of South Africa. A treaty enacted into law by national legislation will enjoy
the status accorded to it by the act of incorporation: a treaty enacted into law by Act of Parliament will be
treated as An Act of Parliament; whereas a treaty enacted into law by subordinate legislation will be treated as
subordinate legislation.
- A non-self-executing treaty binding on South Africa internationally but not incorporated into municipal law
will have no direct force of law but may be used to interpret an ambiguous statute or to challenge
legislation, along the lines indicated.
The executive certificate:
The executive is responsible for the conduct of South Africa’s foreign relations, and in the exercise of this
function, it will frequently make decisions on subjects governed by international law.
The executive in effect seeks to usurp the power of a municipal court to apply rules of customary international
law to a particular factual situation that comes before it.
Customary international law is law in the Republic unless it is inconsistent with the Constitution or an Act of
Parliament. This means that an executive certificate issued in terms of a common-law power that expresses an
opinion on a question of international law is now subject to judicial review.
The justiciability of acts of state:
Before 1994, the application of international law in South Africa was subject to constitutional rules and
prerogative powers derived from English law. The position has now changed dramatically.
South Africa is a constitutional democracy in which the principles of executive accountability and transparency
feature prominently and the courts are given wide powers of review of administrative action and legislation.
a) The justiciabiltiy of acts of the South African government in foreign relations

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The refusal of courts to ‘go behind’ an executive certificate on a matter of foreign relations was a further
manifestation of the non-justiciability of acts of the South African government by domestic courts.
Whether these acts remain non-justiciable today is doubtful.

1. Courts are given to apply rules of customary international law not inconsistent with the Constitution or
an Act of Parliament. A court therefore has the power to apply a rule of customary international law
contrary to an executive decision.
2. The Constitution grants everyone the right to have any dispute that can be resolved by the application
of law decided in a fair public hearing before a court without qualification.
A general rule is that: South African courts should exercise judicial restraint when dealing with South Africa’s
foreign relations with other countries, in particular because of the lack of judicial and manageable standards
by which to judge the issue.
The powers of the executive are not unlimited in foreign affairs.
b) The justiciability of acts of foreign governments
A South African court may decide to follow the judicial policies of the United States or England in respect of
non-justiciability but it can only do so within the framework of its own constitutional rules in general
The ‘extra-territorial’ application of the Constitution is thus an application of the Bill of Rights, triggered by
effects aborad, which would be the end-result of acts of public officials begun in South Africa.
It is a general rule of international law that the laws of a state ordinarily apply only within its own territory.
b) The South African Position

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5. Chapter 6: OBJECTS OF INTERNATIONAL LAW
a) Acquisition of Territory
This describes how a state acquires land and how it acquires territory – there are two modes of acquisition,
namely derivative modes of acquisition and original modes of acquisition.
Original modes of acquisition: describes the situation where land is acquired that is not owned by anyone. It is
a unilateral act where ownership is acquired by discovery.
Derivative modes of acquisition: describes the situation whereby land is transferred from one person to
another. It is a bilateral act that requires cooperation between the parties.
1. Territory
The concept of statehood embraces two main elements, one abstract (sovereignty) and the other material
(territory, government and people). Of the material elements, the first two are singled out for special
protection by article 2(4) of the UN Charter, which prohibits the use of force against the territory or political
independence of any state.
Legal issues concerning territory occur in two situations:

1. At the birth of a state – when questions arise about recognition of a new territorial sovereign.
This situation is subject to only marginal regulation:
- Self-determination,
- A prohibition on the acquisition of territory through the use of force, and
- An emerging principle of democratic government.
2. When an established state acquires additional territory – when questions arose about modes of acquisition
and boundaries.
Governed by a set of rules derived from Roman law. Title to new territory may only be acquired by one of
the approved modes of acquisition:
- Discovery
- Occupation
- Cession
- Accretion
- Avulsion
- Conquest
- The award of a tribunal
Original mode:
a) Occupation and discovery
During the fifteenth and sixteenth centuries, when the European powers were claiming ‘discovery’ of Asia,
African and the Americas, they often asserted titles to their new territories on the basis of discovery and
occupation. These rights are original in the sense that they implied the territories were not in the possession of
an existing sovereign. In other words, they belonged to no one and were terra nullius.
The colonisers regarded the prospective colonies as so sparsely populated so that they were essentially
‘empty’ or so barbarous that their indigenous politics were unfit to be treated as sovereigns.

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However, the International Court of Justice in contemporary international law has declared that any territory
inhabited by a people with an effective social or political organisation could not be considered ‘empty’
(Western Sahara). This declaration has significantly limited the types of territory that might fall into that
category.
During the period of European colonization of Africa, Asia and the Americas, discovery as a mode of acquisition
meant little more than a symbolic apprehension of the land, together with an animus occupandi, that is, an
intention to become sovereign. By the late eighteenth century, however, a requirement of effective occupation
emerged and mere discovery was no longer enough.
Western Sahara case:

Ratio: Territories inhabited by people having a social and political organisation could not be considered to be terra
nullius.
Facts:
 In 1884, Spain colonized a large area of the north- west African coast  Western Sahara.
 In the early 1950s, large deposits of phosphates (minerals) were discovered. Thus, there was a dispute between
Spain, Morocco and Mauritania as to who owned the land.
 At about the same time, large anti- colonial sentiments developed in the colony and the General Assembly (GA)
resolved that it should be decolonized.
 In 1967, armed opposition to Spanish rule began and liberation movements were founded. The indigenous
people demanded complete independence from any country. However, Morocco and Mauritania (Western
Sahara’s neighbours) now asserted titles to the territory, claiming it on the basis of historical ties predating
Spain’s colonization.
 Spain had colonized the area, but Morocco and Mauritania argued that they had historical ties with the region.
 In 1974, the ICJ gave an advisory opinion on the legal status of Western Sahara.
Issue: (1) At the time of Spanish colonization, was the territory terra nullius i.e. were there prior owners to the land? (2)
If not, were there any legal ties between the territory and Morocco and Mauritania?
Reasoning:
 (1) The ICJ held that to answer the first question the legal concept of terra nullius had to be interpreted in terms
of the law in force in 1884. The court looked at the law that was in force at the time of Spanish colonization 
doctrine of inter-temporal law. The ICJ held that since IL is changing all the time one needs to determine the law
in place at the time of Spanish colonization.
According to state practice at that time, territories inhabited by tribes or peoples ‘having a social and political
organisation were not regarded as terra nullius.’ Thus, the territory was not terra nullius when it was colonized
by Spain.
 (2) Morocco claimed that it had legal ties to the territory on the ground of immemorial possession and an
uninterrupted exercise of authority. The court held that the critical question was whether Morocco had displayed
an effective authority. Morocco argued that it because of the common bond of Islam and the allegiance of
various tribes. However, the court held that this situation did not indicate the existence of a display of effective
and exclusive state activity by Morocco over the Western Sahara.

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Conclusion: The territory was not terra nullius when Spain colonized it and Morocco and Mauritania could not claim any
legal ties to the territory.
Island of Palmas Case (Netherlands v US) 1928

Facts:
 As a result of the Spanish- American War of 1898, Spain ceded (transfer by agreement) the Philippines to the US
by means of a treaty.
 In 1906, a US official visited the Island of Palmas which the US believed to be a part of the territory ceded to it,
and found a Dutch flag flying on the island.
 The Netherlands and the US referred the question of sovereignty over the land to the Permanent Court of
Arbitration for decision.
Reasoning:
 If a dispute arises as to the sovereignty over a portion of territory, it is customary to examine which of the states
claiming sovereignty possesses a tile superior to that which the other state might possible bring forward against
it. However, if the contestation is based on the fact that the other party has actually displayed sovereignty, it
cannot be sufficient to establish the title by which territorial sovereignty was validly acquired at a certain
moment. It must also be shown that the territorial sovereignty has continued to exist and did exist at the
critical date  actual displays of state activities.
 Required elements to the display of authority:
 The continuous and peaceful display of authority (peaceful in relation to other states) in the period
leading up to the critical date (date of when dispute crystalized).
 The title alleged by the US derived from the cession of rights of sovereignty that Spain allegedly possessed. Spain
could not transfer more rights than it possessed. The US bases its claim, as successor of Spain, in the first place
on discovery.
 The effect of discovery by Spain must be determined by the rules of IL in force at the time of the
discovery  inter- temporal law.
 The doctrine of inter-temporal law determines which of the different legal system prevailing at
successive periods is to be applied in a particular case. ‘ The same principle which subjects the act
creative of a right to the law in force at the time the right arises, demands that the existence of the right,
in other words its continued manifestation, shall follow the condition required by the evolution of the
law.’
 The court applied a principle from 18th century which provided that to constitute a claim to territorial
sovereignty, occupation must be effective i.e. it must offer certain guarantees to other states and their
nationals. Thus, there should be no regions which are neither under the effective sovereignty of a State,
nor without a master. The concept of terra nullius is no longer recognised by existing law.
 For this reason, discovery alone, without any subsequent act, cannot suffice to prove sovereignty.
 If the view is adopted that the discovery does not create a definite title of sovereignty, but only an
‘inchoate’ title, such a title exist without external manifestations. However, according to the view that
has prevailed since 19th century, an inchoate title of discover must be completed within a reasonable
period by the effective occupation of the region claimed to be discovered. *’This principle must be
applied in the present case, for the reasons given above in regard to the rules determining which of
successive legal systems is to be applied (inter-temporal law).’

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 However, even if Spain did possess an inchoate title, an inchoate title could not prevail over the
continuous and peaceful display of authority by another State, for such a display may prevail even
over a prior, definite title put forward by another State.
 The Court held that practice, as well as doctrine recognises that the continuous and peaceful display of
territorial sovereignty (peaceful in relation to other states) is as good as a title.’
 The court held that Netherlands had exerted peaceful and continuous display of authority over the island in the
period leading up to the critical date i.e. the date from which the sovereignty is contested (the date on which
Spain ceded its rights to USA).
Conclusion: The island of Palmas forms a part of Netherlands territory.
This case shows that discovery alone not enough for original acquisition. You have to look at Inter-temporal law – which
law is applicable at the time.
Derivative modes:
b) Cession
Cession is simply an agreement between states to transfer territory. Formerly, cessions for value were quite
common, as were cessions coerced from defeated states at the end of armed hostilities. Today, strictly
speaking, a treaty of cession binds only the states concerned.
Cession is a derivative mode of acquisition, which implies that the cessionary acquires no more rights than
those held by the ceding state.
Although cession is an agreement between states, considerations of the wishes of the inhabitants of the
territory concerned is, arguable, now required by the rule of self-determination.
c) Accretion and avulsion
Accretion means the gradual increase of land through deposits of silt, caused by the action of wind, rivers or
tides.
Avulsion means the sudden removal of land from the domain of one state to another, usually as the result of
changes in the course of a river.
Problems may occur when new land is added to the banks of a river marking an international boundary.
- If accretion was the process involved, the land is deemed to belong to the state on whose side of
the boundary the silt was deposited.
- If avulsion was the process involved, there would be no change in boundaries.
d) Prescription
Unchallenged occupation of another’s property over a period of time is deemed to ripen into full ownership.
Prescription, therefore, addresses two potentially problematic situations:

1. Where the original title is vague or disputed
2. Where one state has been in adverse occupation of another’s territory for a long period of time.
In both instances, peaceful, public occupation cures the uncertainty.

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To establish a prescriptive title, systems of municipal law normally require proof that the claimant had acted as
owner continuously, publically and peacefully for a specified period of time.
In international law, there is considerable uncertainty about these rules:

- No rules have developed stipulating what period of time must elapse and what constitutes an
interruption of possession.
The entire question whether prescription is part of international law remains unanswered.
e) Conquest and annexation
This mode of acquiring territory requires both physical subjugation of a nation, coupled with an intention to
annex. Acquisition of territory by use of force, however, is no longer permissible. Even so, the doctrine of
intertemporal law will generally serve to preserve titles acquired by force prior to 1946.
 Article 2(4) UN Charter: a prohibition on the use of force.
All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any State, or in any other manner inconsistent with the
Purposes of the United Nations.
 The General Assembly Declaration on Principles of International law concerning Friendly Relations –
amplifies what article 2(4) of the UN Charter is about – states must resolve disputes in peaceful means and
must not resort to force. A General Assembly resolution is not a binding source of international law, but
over time it may become customary international law if it is consistently applied.
 The Stimson Doctrine – a letter written by a US diplomat stating that the US did not recognise the conduct
of Japan in annexing certain territories. It is a famous doctrine because it is the first time that a state
actively opposed the conduct of another state with regard to the use of force.
f) Award
Title may be claimed on the basis of an award given by a tribunal asked to settle a territorial dispute, whether
by arbitration or adjudication.
g) Contiguity
States frequently assert title on the ground of contiguity. This concept implies the geographical extension of
sovereignty over barren and sparsely populated areas, which have not been effectively occupied.
Contiguity may help to establish the range of a state’s control over territory. In this sense, it can be used as a
rebuttable presumption of title.
Modern international practice
In at least four aspects, the classical rules do not accurately reflect the ways in which territory is acquired.
1. Acquisition is seldom a single, immediate event.
2. A valid title is often based on two or more complementary modes of acquisition, which are reinforced
by acquiescence, estoppel and recognition.
3. Title is hardly ever treated as absolute.
4. Effective and peaceful occupation is a key requirement.

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In practice, most assertions of historic title tend to be based on acquiescence, recognition and estoppel. If a
state took no action to protect against another state’s exercise of sovereignty in a territory to which it claims
title, it may be estopped from denying the other’s rights. Furthermore, one must take note of the fact that
neither acquiescence nor recognition can by themselves give a valid title.
Nowadays, the traditional modes of acquisition must be read subject to the current rules of international law,
especially the prohibition on the use of force, the right to self-determination and the emerging doctrine of
aboriginal title. If these rules have been violated, no title is tenable.
The doctrine of intertemporal law
This doctrine prescribed the date at which laws should be applied to determine title to territory. The
intertemporal law requires application of the legal rules in existence at the time of the original appropriation.
Critical dates
In disputes over territory, one particular date (or several) may become relevant to deciding the case. It is quite
common to exclude all evidence arising after the date selected for hearing a dispute. In many cases, however,
critical dates play no particular role in the decision-making process.
Clipperton Island Case (France v Mexico) 1932

Facts:
 In 1858, a Lieutenant of the French navy was ordered to declare the sovereignty of Clipperton Island, an
uninhabited island south- west of Mexico. The vessel did not reach the shore of the island but once it was
proclaimed and declared that the island belonged to France, the commissioner notified the accomplishment of
his mission to the Consulate of France at Honolulu, which communicated this to the Government of Hawaii. The
consulate also published the declaration of French sovereignty over Clipperton Island.
 Until the end of 1897 there was no acts of sovereignty on the part of France or any other state. The island had no
population and no administration was organized there.
 At the end of 1897 three persons were found on the island collecting guano (a type of fertilizer made from the
excrement of sea birds) and when seeing the French ship they raised the American flag. US said that they did not
grant concessions to the company and did not intent to claim right of sovereignty over the island.
 Mexico ignored that the occupation was claimed by France and claimed that Clipperton was their territory and
had been for a very long time. IN late 1897 Mexico tried to reassert its claim to the island. They argued that the
island had been discovered by the Spanish Navy and belonged to Spain and thus now to Mexico as the successor
state of the Spanish state.
Legal issue: Did France take effective occupation of Clipperton Island?
Reasoning:
 Evidence showed that it had not been proven that the island was discovered by the Spanish navigators. Even if
the island had been discovered by Spanish subjects, it had not been demonstrated that Spain had the right to
incorporate the island into its possession nor that it had effectively exercised this right.
 Thus, when France proclaimed and declared sovereignty of the island, the island was terra nullius and thus open
to occupation.
 Therefore the question is whether France took effective occupation of the island.

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 Mexico argues that French occupation was not valid.

 It is argued that France did not take effective possession of the island and thus the occupation is null and
void.
 However, by the regularity act of France, it was made known in a clear and precise manner that France
had the intention to consider the island as its territory.
 It is beyond doubt that by immemorial usage having the force of law, besides the animus occupandi, the
actual, and not the nominal, taking of possession is a necessary condition of occupation. This taking of
possession consists in the act, or series of acts, by which the occupying state reduces to its possession the
territory in question and takes steps to exercise exclusive authority there. Strictly speaking, and in
ordinary cases, that only takes place when the state establishes in the territory itself an organization
capable of making its laws respected.
 But this step is, properly speaking, but a means of procedure to the taking of possession, and, therefore,
is not identical with the latter. There may also be cases where it is unnecessary to have recourse to this
method. Thus, if a territory, by virtue of the fact that it was completely uninhabited, is, from the first
moment when the occupying state makes its appearance there, at the absolute and undisputed
disposition of that state, from that moment the taking of possession must be considered as
accomplished, and the occupation is thereby completed.
Conclusion: The fact that France did not exercise its authority on the island in a positive manner does not imply the
forfeiture of an acquisition already perfected. France did take effective occupation and thus Clipperton Island was
legitimately acquired by France.
The Legal Status of Eastern Greenland Case (Denmark v Norway) 1933 (PCIJ)
Facts:
 In a declaration in 1931, Norway ‘officially confirmed’ its ‘taking possession’ of Eastern Greenland, an
uncolonised part of the island. Denmark had colonies elsewhere in Greenland and claimed sovereignty over the
whole of the island.
 Until 1931 there was no claim by any other state than Denmark to the sovereignty over Greenland.
 Denmark asked the PCIK to declare that the Norwegian declaration was invalid.
Issues: Was Norway’s declaration that it had taken possession of certain territories in Eastern Greenland invalid?
Reasoning:
 The court held that a claim to sovereignty based upon continued display of authority involves 2 necessary
* The elements:
doctrine of (1)inter-temporal
the intention andlaw: the
will to doctrine prescribesand
act as a sovereign, the(2)date
someatactual
whichexercise
laws should be applied
or display of suchto
authority.
determine title to territory.
 Although Denmark had not colonized Eastern Greenland, the Court found sufficient evidence of its claim and of
 Inter-temporal law requires application of the legal rules in existence at the time of the original
exercise of state authority over the area during many centuries to show that it had established title to it at the
appropriation.
‘critical date’ (the date Norway made its claim in 1931). Evidence showed that there were treaties entered into
 that
This is
showedconsistent withwill
Denmark’s the principle
and intentionthat rights already
to exercise acquired
sovereignty, should
Denmark continue
granted to be protected.
concessions for trading,
 legislation
This principle was approved
establishing the widthinofIsland of Palmas
the territorial but there
CaseDenmark
sea and was anagainst
protested addedthe requirement.
erection of a wireless
station
‘ The samebyprinciple
Norway.which subjects the act creative of a right to the law in force at the time the right arises,
 demands
The court held
that thethat this evidence
existence was in
of the right, sufficient to establish
other words Denmark’s
its continued sovereigntyshall
manifestation, overfollow
the years.
the condition
required
Test by the evolution
to be applied of the
in this case: law.’ had hardly exercise any physical control over the territory but had displayed
Denmark
state
The authority
meaning ofover
thethe area. ‘In many
caveat/extra cases thehas
requirement tribunal has been
long been satisfied
debated. with
In the very little
context of thein Island
the way
of of actualCase,
Palmas
it mean that, despite Spain’s claim based on discovery, Spain had failed to maintain and consolidate its title. The
island was awarded to the Netherlands, which had exercised authority over it through a peaceful and effective
display of sovereignty for 200 years.
lOMoARcPSD|32726779
exercise of sovereign rights, provided that the other state could not make out a superior claim. This is particularly
true in the case of claims to sovereignty over areas in thinly populated or unsettled countries.’
PRACTICE QUESTIONS:
1. What are the differences between derivative and original modes of acquisition?
2. What is the significance of the ‘critical date’? Hint: Look at the Island of Palmas decision.
3. What is required to prove the authority of a sovereign state over acquired land?
b) Landward Extent of State Boundaries
General:
It is important to determine state boundaries because states need to know who their citizens are, who owns
the mineral deposits on a specific piece of land, who owns the rivers, and so on.
Boundaries are determined by treaties – a state will sign a treaty with a neighbouring state agreeing to certain
lines of demarcation and those agreements are specific in determining where the actual boundary lies.
The determination of boundaries between states has been heavily influenced by technical improvements in
the sciences of surveying and cartography.
- Previously, during the seventeenth and eighteenth centuries, boundaries were calculated to run with rivers
and mountain ranges, or along the fringes of deserts and marshes.
- Today, however, such topographical features are not, on their own, considered a valid basis for determining
a boundary.
Boundaries must, in essence, be determined by the states concerned, which they usually do by agreement.
Initially, parties agree on the general direction of the boundary, leaving the details to be fixed by a demarcation
commission, which can then survey the area and produce a detailed map.
The terms of boundary treaties, like any others, must be interpreted in accordance with the parties’ common
intention.
Where states agreed, without specifying more, that a river was to function as their boundary, the so-called
‘Grotian rule’ provides that the middle of the river marks the point of division. As a result of some uncertainty,
in the nineteenth century, the Grotian rule was modified to provide that the boundary should follow the
middle of the principal channel, or the path of the strongest downstream current.
Uti Possidetis:
Decolonization posed particularly acute boundary problems for newly emerging stats. The doctrine of uti
possidetis, which means acceptance of what is held by the existing possessor.
New states were presumed to inherit the former colonial administrative boundaries, thus obviating the need
to create new borders.

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Uti possidetis now seems to have become a rule of customary international law, one that, for particular
reasons of stability and continuity, overrides even the right to self-determination.
Why would a state wish to retain its colonial boundaries?

- The old colonial boundaries were maintained most of the time mainly due to the idea of maintaining
stability in the state. Easier to maintain them than to create new ones.
- Clean slate doctrine is the idea of starting from scratch
Temple of Preah Vihear Case (1962) ICJ Rep 6:
Facts
The Cambodian government instituted action against Thailand for the return of the Temple, which Cambodia thought
was on their land
Legal Question
Who was sovereign over the region of the Temple?
Answer to legal Question

Cambodia was the sovereign over the Temple because Thailand had never disputed this fact before Cambodia’s
application to this court – this was taken as an inference that they believed Cambodia to be sovereign over the Temple.
Reasoning
- The Treaty of 13 Feb 1904 was involved – it delineated the border between Cambodia and Thailand
- Where the Temple was situated the border was to follow the watershed line
- At that time when the Treaty was signed – it was the French and the Siamese who sign it
- They apparently travelled along the border line and demarcated various areas – there was no record of this though
- They also prepared maps
- On the map – Cambodia was the sovereign over the Temple
- But Thailand argued that the maps were not binding as they were not from the Mixed Commission (of the French
and the Siamese – only the French drew up the maps)
- Thailand also argued that the map did not reflect the true watershed line and also they never agreed to the map
- The court conceded that the map was not binding – but mentioned that the Siamese and later the Thai government
had raised no query about the map, prior to the application by the Cambodian government
- The inference was that the Thai government had accepted the map, irrespective of the incorrect watershed line
- There were also certain occasions like the Franco-Siamese Conciliation Commission, where Thailand could have but
never raised the issue
- From these facts – the court found in favour of Cambodia
Outcome
The Temple was found to belong to Cambodia and Thailand was thus under an obligation to withdraw any military or
police forces, or other guards or keepers, stationed at the Temple or in its vicinity
Thailand was also under an obligation to restore any items that had been removed from the Temple whilst they occupied
it
Frontier Dispute (Burkina Faso / Mali) (1986) ICJ Rep 1986 554 at 565-567:
Facts
The Chamber’s task is to indicate the line of the frontier between Burkina Faso and Mali
Legal Question

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Where is the frontier line?
Answer to legal Question

The Chamber maps out the answer to this question.
Reasoning
- The Chamber uses the following principles of law to come to their decision:
 The principle of the intangibility of frontiers inherited from colonization
 The principle of uti possidetis juris (which accords pre-eminence to legal title over effective possession as a basis
of sovereignty)
 The role of equity
 French colonial law
- The judgment then goes through the colonial history of each country
- The judgment then rules out the argument by Burkina Faso that Mali accepted as binding the solution to the dispute
outlined by the OAU Mediation Commission – this was because it was not in the special agreement as ‘rules
expressly recognized by the contesting states’ for the courts attention
- The court also mentions it is within their jurisdiction to decide on the tripoint area of the map – where the border
touches that of Niger
- The parties produced evidence to the court such as many documents, many maps and they also said the court
should rely on the conduct of the administrative authorities
- By examining the similarities and differences of the documents and maps produced – the court comes to its decision
- It finds difficulty defining certain places and terms – but the judgment says that it uses logic that is reasonable
Outcome
The court draws up the map and the dispute is concluded.
PRACTICE QUESTIONS:
1. Why is the determination of state boundaries so important?
2. Explain the difference between the principle of uti possidetis and the clean slate doctrine.
3. Why would a newly independent state choose to retain old colonial boundaries? Use a case to illustrate
your view.
c) Rights in Foreign Territory
Servitudes:
A servitude is a right in another’s property which survives the transfer of that property to a new owner. State
practice has never fully accepted the possibility of such an institution in international law. Because of the
absolute nature of sovereignty, it was assumed that a state cannot acquire rights in the territory of another
state unless the latter had explicitly consented. Even so, it is generally accepted that states succeed to the
dispositive treaties of their predecessors (notably treaties fixing international boundaries).
North Atlantic Fisheries Arbitration –

This case deals with USA and Britain and a treaty of 1818. In terms of this treaty, fishing rights were granted to USA
citizens on New Found land, which is now part of Canada. The territory was under British control. Britain wanted to
regulate the fishing rights. The US argued that Britain did not have the right to do so because it had a servitude in its
favour. During the arbitration, it was found that this agreement could not be deemed to be a servitude because:
(1) At the time of the drafting of the agreement, there was no such thing as a servitude in international law; and

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(2) The court found that a servitude is a sovereign right and international servitude would be a sovereign right where as
the agreement in this case was an economic right i.e. the right to fish. Even if it is a servitude, it is not unlimited and
the dominant state has the right to regulate it. There is no such thing as an international servitude in international
law.
The Wimbledon case –

The Keal Canal cut through Germany and linked the Baltic States to the North Sea. It was a case between France, Italy
and Japan v Germany. The case concerns article 380 of this treaty. The Keal Canal (which cut through Germany) was to be
kept open to vessels of commerce and of war to all nations at peace with Germany. The question was whether article
380 created a servitude in favour of the other states. The court did not give a definite answer as to whether a servitude
existed in international law. The court held that rather than looking at it as a servitude, it must be seen as a international
waterway. *This case was not very clear.
Union of India v Sengupta –

This case was heard in an Indian Court, whereby the court recognised a servitude in international law. The case was
concerned with the use of Indian territory by Bangladesh. There was an agreement between India and Bangladesh about
Bangladesh having right of access through India. The court held that it was a servitude. The problem with this case is that
it was decided by a municipal court, and the court did not give any meaning to the term servitude in international law. It
is based on a treaty between two states.
Nkondo v Minister of Police –

This case was decided in 1980 by the Durban High Court. The court held that there was no servitude in international law.
A member of Mkhonto we Sizwe was on board a flight from Mozambique to Lesotho – due to bad weather conditions
the plan was force to land in Bloemfontein. Nkondo was wanted in South Africa for terrorist activities. Should South
Africa be able to arrest him? While customary international law allows ships in distress to enter a port for safe harbour,
this should be extended to aircraft as well BUT the court found that he needed to be arrested.
Right of Passage Case – regarding rights of passage.

This was a case between India and Portugal. There were certain states in India that were Portuguese colonies (they are
landlocked in India). Post Indian independence, India wanted these territories back and India blocked Portugal’s access to
the territories. The court held that there was a local custom that allowed for the passage of civil officials and goods but it
excluded armed forces, police and ammunition, and if Portugal wished to have passage through India then it needed to
request permission from India. The court held that the local custom existed when India was under English colonial rule.
Dispute regarding navigational and related rights (Costa Rica v Nicaragua) –

The case dealt with navigational and associated rights along a river. The treaty was in 3 different languages, namely
English, French and Spanish. The Spanish version was interpreted differently to the English and French versions. In order
to unravel this issue, the court looked at the texts of each of the treaties and what the VCLT said on the issue. Costa Rica
and Nicaragua were not signatories of VCLT, but VCLT forms part of customary international law.
Environmental protection:
Is a state liable for polluting another state? Today, a state will incur direct responsibility when it pollutes the
environment of another state. But in the past, the position was different.

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Until recently, customary international law did not place limitations on how states use their territory in order
to avoid causing damage to their neighbours. States were, instead, free to exploit resources within their
territory as they wished, regardless of the consequences for their neighbours. The rule was premised on the
notion of absolute sovereignty and the practical difficulty of determining and controlling the effects of
pollution.
Over the last 50 years, however, global pollution and the need to protect the environment have become such
serious issues for the entire community of nations that concerted efforts have been made to regulate the way
in which states may use the resources in their territory.
The first indication of a customary rule prohibiting trans-boundary pollution came with the case of Trail
Smelter Arbitration –
- The case concerned a dispute between the USA and Canada arising from damage to the wheat crops of
American farmers caused, allegedly, by fumes generated at an iron smelter in Canadian territory. The
tribunal found in favour of the USA, and held that ‘no state has the right to use or permit the use of its
territory in such a manner as to cause injury by fumes or to the territory of another or the properties of
persons therein.’
- The doctrine of abuse of rights was then confirmed in the Corfu Channel Case.
The gradually emerging duty to ensure environmental protection received further support from a UN
Conference on the Human Environment. The conference confirmed that states were obliged to ensure that
activities within their jurisdiction did not ‘cause damage to the environment of other states or to areas beyond
the limits of national jurisdiction.
The next milestone in the development of customary law was in the Legality of the Threat or Use of Nuclear
Weapons Case. The court held that states had a ‘general obligation to protect the natural environment against
widespread, long-term and severe environmental damage.’
The clearest support for a customary rule on protection of the environment, however, came from the
Gabcikovo-Nagymaros Dam Project case. The International Court of Justice held that an obligation to conduct
an environmental impact assessment, to notify and consult with neighbouring states and to ensure sustainable
development were emergent norms of customary law.
Given the tentative progress of customary law, international organizations have taken the lead in tackling the
problems of pollution and conservation, and have been successful in producing a series of declarations,
conventions and codes of conduct.
Most of the law in this area is soft law, meaning that it is not binding. Many countries will not agree to reduce
emissions because they are making money. Other states which also do not comply are the emerging
economies, such as India and China.
 Kyoto Protocol (1997) (binding): Regulates the emission of CO2 and other greenhouse gases. It has not hugely
successful because certain states have refused to sign up. It binds developed states but not certain developing states.
 Copenhagen Accord (2009) (non-binding): It is written in a very vague and unclear manner – not strict obligations.
Trying to reduce the increasing in global temperatures.
Although the emerging measures for regulating pollution are modelled on human rights principles, an explicit
right to a health environment is contained in only one regional human rights regime. It has been suggested

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that the individualistic nature of human rights may not be appropriate for the communal nature of
environmental issues.
PRACTICE QUESTIONS:
1. Does a ‘servitude’ exist in international law? Explain using case law.
d) Vertical and Horizontal Extent of State Boundaries
How far above the ground can a sovereign claim air? This area is largely unresolved because of conflicting
interests: (1) state security, and (2) freedom for commercial air carriers to travel through states.
Vertical extent of state sovereignty

a) Defining the limits of airspace
Airspace jurisdiction involves all the space above land, internal waters and territorial seas.
Although the principle of sovereignty over airspace is clearly established, states have been unable to agree on
its outer limit. Those wanting maximum freedom for commercial air traffic – and, latterly, space exploration –
have tended to favour a lower level, whereas those wanting greater national security favour a higher level.
The Outer Space Treaty (1967) provides that outer space is not subject to national appropriation, and is
reserved for peaceful uses only.
The definition of airspace has proved especially contentious in relation to geostationary satellites; that is,
satellites placed above the equator and rotating in sync with Earth, thereby remaining at fixed points relative
to Earth’s surface.
Several solutions to the problem of delimiting airspace have been proposed:

- The most widely accepted is an aerodynamic lift theory, according to which states may claim sovereignty
up to the limit at which it is possible to fly instrumentalities deriving their support from the movement of
air molecules. This proposal conforms to state practice: while states usually protest against aircraft and
balloons infringing their airspace, they raise no objection to orbiting satellites. On this basis, it could be
argued that sovereignty extends to the lowest altitude at which satellites could orbit (110 km).
- The upper limit of the atmosphere has been proposed as an alternative, physical limit on airspace. The
atmosphere, however, is not a uniform entity. It consists of several layers: the troposphere, stratosphere,
ionosphere and even an exosphere. As a result, this proposal has not proved a viable solution.
- A sector theory based on an analogy with the marine extensions of state jurisdiction has also been
suggested. States would have full sovereignty up to the limit at which conventionally powered can fly (50
km). Adjacent to this is a contiguous zone in which a right of transit is allowed to all non-military aircraft
(50-100 km), and above that is outer space. This proposal, too, has failed to attract support.
In this complex and still unresolved debate about airspace, two general tests may be identified:
1. The spatial test – advocated by the former Soviet Union where there was a clearly demarcated limit on
airspace of 100-110 km, allowing space vehicles passage at the lower altitude in order to reach orbit
and return to Earth.
2. The functional test – advocated by Britain and the USA, who argued that because airspace and outer
space are differentiated by an aeronautic and astronautic activities, state jurisdiction should be

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determined accordingly, and that the somewhat arbitrary 100 km limit established large areas of
airspace, over which states cannot exercise effective control.
b) The ‘freedoms’ of the air
Between the two World Wars, a major issue in air law was how to regulate the traffic of commercial aircraft.
The Paris Convention (1922) established a distinction between scheduled and ad hoc flights.
Scheduled – had no right to operate in the airspace or on the territory of foreign states without prior
permission.
Ad hoc – aircraft falling into this category ha the freedom of innocent passage through the airspace of other
parties, provided that they were registered in one of the states party to the Convention.
The International Air Services Transit Agreement (1944) provided for the first two freedoms of the air:
1. Permits parties to the agreement over flight privileges; i.e., aircraft using designated air routes may fly
over but not land in other states party to the agreement.
2. Allows landing for non-traffic purposes. In exchange for the enjoyment of these freedoms, states may
charge airlines reasonable fees.
Bermuda Agreements, between Britain and the USA, established the third, fourth and fifth freedoms of the air:
3. The right to carry passengers and cargo from state of origin of aircraft.
4. The right to carry passengers from another country to signatory state.
5. The right to carry passengers and cargo between foreign states as part of connecting services to
airline’s own state.
It is argued that, under customary law, by analogy with ships in distress, aircraft in distress should have
immunity from state jurisdiction.
The Chicago Convention – states must refrain from resorting to the use of weapons against civil aircraft in
flight.
Marine extent of state sovereignty
How far into the sea can the state claim sovereignty? This aspect is well regulated and only come into force in
1994 – it required 60 ratifications.
In 1609, a decree was issued excluding Dutch fishermen from operating off the coast of England. At the same
time, people were proclaiming freedom of the seas. The stage was, therefore, set for a contest between states
seeking freedom of movement for shipping and fishing, and coastal states, which sought greater control over
their marine resources.
Finally, the many differences in policy and interest culminated in one of the twentieth century’s most
ambitious attempts at international law-making: The UN Law of the Sea Convention (1982)  UNCLOS.
- Most of the world’s states have acceded to it, including South Africa.
- While the UNCLOS is the principal source of regulation on marine spaces, the earlier Geneva Conventions
were not annulled. The Geneva Conventions remained the primary source of obligation where the parties
undertook obligations comparable with those of the Geneva Conventions.
(a) The baseline, internal waters and the territorial sea
The UNCLOS establishes four distinct zones over which a coastal state may exercise its jurisdiction:
1. The territorial sea

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2. The contiguous zone

3. The continental shelf
4. The exclusive economic zone (EEZ)
The critical factor for measuring these four zones, and for distinguishing land from marine spaces, is the
baseline. All land and waters to the landward side of this line are deemed internal waters, and, as such, are
subject to the same legal regime as land. Internal waters include:
- Bays and closed-off river mouths
- Ports
- Harbours
- Waters between the low- and high-water marks, i.e. the intertidal zone
In South Africa, the major source of regulation for internal waters is the Marine Traffic Act. Foreign ships have
right of entry into these waters if they are in distress; namely, if they are suffering mechanical failure or are
facing imminent danger from the elements. Once in internal waters with the consent of the coastal state, they
enjoy the same immunities as foreign armed forces.
The normal baseline is deemed to be the low-water line along the coast. In exceptional cases, however, the
coastal state may use a ‘straight baseline’ = this method allows coastal states to select a number of points on
the low-water mark that are then joined by straight lines, provided that the lines follow the general direction
of the coast and provided that the enclosed waters are closely connected to the land so as to be suitable for
regulation as internal water.
- The straight baseline method applies typically to topographical features such as those found in Norway,
where the coast is deeply indented and fringed with islands and rocks. It is also applicable in the case of a
bay.
A bay = a well-marked indentation whose penetration is in such proportion to the width of its mouth as to
contain land-locked waters and constitute more than a mere curvature of the coast. An indentation shall not,
however, be regarded as a bay unless its area is as large as, or larger than, that of a semi-circle whose diameter
is a line drawn across the mouth of that indentation.
- The restrictions, flowing from the UNCLOS definition of a bay, do not apply in the case of ‘historic’ bays,
which, for reasons of long accepted practice and international recognition, are treated as internal waters.
The territorial sea lies to the seaward side of the baseline. South Africa has proclaimed a 12 nm zone of
territorial waters. Notwithstanding a state’s sovereign rights in the territorial sea, foreign ships have a right of
innocent passage to sail through it.
- The passage must be continuous and expeditious
In the following cases, a coastal state may exercise criminal jurisdiction over foreign ships passing through its
territorial sea in order to effect an arrest or conduct an on board investigation provided that:
- The consequences of the crime extend to the coastal state;
- The crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
- The assistance of the local authorities is required by the master of the ship or by a diplomatic agent or
consular officer of the flag state; or
- Such measures are necessary for the suppression of illegal drug traffic.
An especially high volume of foreign shipping occurs in international ‘straits’. These are narrow channels of
water connecting larger marine areas, such as high seas or EEZs.

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(b) The contiguous zone
The contiguous zone lies adjacent to the territorial sea. It may not extend more than 24 nm from the coastal
state’s baseline. In this zone, the coastal state may exercise enforcement – but not legislative – jurisdiction;
namely, the powers required to prevent infringement of its customs, fiscal, immigration or sanitary laws.
(c) The exclusive economic zone
Exploitation of marine resources, especially fishing stock, has long been a source of dispute. An executive
economic zone – coastal states have a limited jurisdiction, principally to exploit natural resources.
It is described (vaguely) as an area beyond and adjacent to the territorial sea, although it may not extend
further than 200 nm from the baseline.
Within the EEZ, the coastal state enjoys sovereign rights for the purpose of exploring and exploiting,
conserving and managing the natural resources, whether living or non-living of the waters super-adjacent to
the sea-bed and of the sea-bed and subsoil.
(d) High Sea
Beyond the EEZ lies the high sea. Because it is res communis, it vests in the community at large, and is not
subject to appropriation by any particular state. This area is subject to the customary-law principle of freedom
of the seas, which implies that it is equally available for use by all states for an open-ended range of activities.
(e) The continental shelf
The continental shelf is a prolongation of the continental land mass under the sea to the depths of between
150-200 m or less.
The Continental Shelf Convention – coastal states were allowed sovereignty to exploit and explore for natural
resources over the shelf up to a depth of 200m or beyond that limit, to where the depth of the super-adjacent
waters admits of the exploitation of the natural resources of the said areas.
The legal status of the continental shelf was accepted as customary law. These rights are exclusive, and, should
the coastal state not exercise them, no other state may do so without express permission.
According to the UNCLOS, the continental shelf was defined so as to extend to the outer edge of the
continental margin, or to a distance of 200 nm from the baseline … where the outer edge of the continental
margin does not extend to that distance.
(f) The deep sea-bed
The deep sea-bed, which is rich in mineral resources, notably manganese nodules, starts at the edge of the
continental shelf, as defined by UNCLOS.
- The deep sea-bed is not subject to an appropriation by states.
- Its resources vest in mankind as a whole.
- States wishing to undertake exploitation must apply for licenses, and must be prepared to pay royalties and
transfer technology to the Authority, which may itself engage in deep sea mining via the ‘Enterprise’ on the
basis of parallel site development.

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(g) Delimitation of zones
Inevitably, whenever zones overlap – whether between opposite or adjacent states – boundaries must be
delimited.
‘The delimitation of the continental shelf between States with opposite or adjacent coasts shall be effected by
agreement on the basis of international law … in order to achieve an equitable solution.’
South Africa is fortunate in having to contend with only two international delimitation matters: with Namibia
and Mozambique, its western and eastern neighbours respectively.
(h) Landlocked states
The UNCLOS introduced certain rights for landlocked states. Article 69(1) allows landlocked states:
To participate, on an equitable basis, in the exploitation of an appropriate part of the surplus of the living resources
of the exclusive economic zones of coastal States of the same sub region or region, taking into account the relevant
economic and geographical circumstances of all the States concerned.
Under the UNCLOS, landlocked states also have a right of access to and from the sea, as well as freedom of
transit, in order to exercise their rights.
(i) Duties and disputes
In addition to declaring the rights of states, the UNCLOS sets out certain duties. Perhaps the most important is
an obligation on flag states to ensure that their ships do not engage in pollution, and an obligation on coastal
states to protect and preserve the marine environment.
- States are obliged to protect and preserve the marine environment from pollution emanating from vessels,
dumping, activities on the sea-bed or land-based sources.
With regard to disputes, the UNCLOS requires parties, in the first instance, to use only peaceful means. If
negotiation or conciliation does not succeed, parties must resort to an adjudicated or arbitrated settlement.
e) Natural Persons
Human beings, incorporations, ships and aircraft

(a) Human beings
A state has personal jurisdiction over its nationals, wherever they happen to be, and it may protect them from
the actions of other states, a right which is termed diplomatic protection.
Under customary law, states are free to bestow their nationality on any individuals they choose, a rule that
frequently led to problems of dual or multiple nationality and statelessness.
- “It is for each state to determine under its own law who are its nationals. This law shall be recognised by other states
in so far as it is consistent with international conventions, international custom, and the principles of law generally
recognised with regard to nationality.”

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International customary law has no rule specifying the circumstances in which states are bound to recognise
nationality.
 However, on the basis of well-established practice, recognition was – and still is – given to nationality
conferred by virtue of the iura soli conferred on a person born in the state concerned and the sanguinis
or related to a national of that state.
 In addition, nationality is recognised if based on naturalisation after a period of long residence.
The Nottebohm case has had a strong influence on the development and interpretation of customary-law rules
on nationality.
- The court held that where nationality was granted because of a social fact of attachment, a genuine
connection of existence, interests and sentiments, together with the existence of reciprocal rights and
duties, a state asserting a weaker attachment would be bound to recognise the grant.
- The court, however, left unanswered the question whether Liechtenstein would have been entitled to
protect Nottebohm against a state with which he had no close connection.
A state may not protect its nationals against the acts of another state whose nationality an individual also
happens to possess, unless the nationality of the former state is predominant.
* This rule, however, is subject to the principle of dominant or effective nationality, whereby a state of dominant
nationality has the better right of diplomatic protection.
* If an individual also has the nationality of a third state, international tribunals tend to treat the third connection as
immaterial.
There is still no fundamental right to choose ones own nationality.
ILC Draft Articles on Diplomatic Protection: (not yet in force)

Article 4
For the purposes of the diplomatic protection of a natural person, a State of nationality means a state whose nationality
that person has acquired, in accordance with the law of that state, by birth, descent, naturalisation, succession of states,
or in any other manner not inconsistent with international law.
Article 6
Any state of which a dual or multiple national is a national may exercise diplomatic protection in respect of that national
against a state of which that person is not a national.
Two or more states of nationality may jointly exercise diplomatic protection in respect of a dual or multiple national
Nottebohm case (Protection of natural persons)
Facts:
 Mr Nottebohm was born in Germany in 1881. He went to Guatemala in 1905 and started a business there that
became successful.
 Although he made periodic trips back to Germany, his business and family life were in Guatemala.
 After the beginning of World War II, he visits his brother in Liechtenstein and obtains nationality there. He did this
because he did not want his German citizenship as a result of what may happen to him if Guatemala declared war on
Germany.
 He did not, however, follow the usual practice to obtain citizenship in Liechtenstein, whereby there was a mandatory
requirement of a three year period of residence. In his application, this requirement was waivered.

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 Guatemala did declare war on Germany and when Mr Nottebohm tried to return to Gautemala he was refused entry
as an enemy alien, since the authorities did not recognise his changed citizenship and still regarded him as German.
His property was subsequently confiscated and he was prohibited from returning to Guatemala.
 When dealing with aliens, the State of the national can bring a claim on their behalf.
 The government of Leichtenstein granted Nottebohm protection against unjust treatment by the government of
Guatemala. However, the government of Guatemala contended that Nottebohm did not gain citizenship for the
purposes of international law.
The issue:
Which State could bring a claim on behalf of Mr Nottebohm?
Reasoning:
Guatemala said that it was the bond of nationality between the individual and the state alone that confers the right of
protection on the state.
Liechtenstein brought a claim against Guatemala
The court placed emphasis on ‘real and effective nationality’.
The test is that there must be a ‘social fact of attachment, a genuine connection of existence, interests and sentiments,
together with reciprocal rights and duties.’ In other words, the individual must have stronger factual ties or be more
closely connected to one State than to the other.
The following factors are taken into account:
- Habitual residence
- Centre of interest
- Family ties
- Participation in public life
- Attachment shown to the country
The court held that Liechtenstein was not entitled to extend its jurisdiction to Mr Nottebohm against Guatemala, as his
connection with Liechtenstein was weak.
The court held that Mr Nottebohm showed every intention of remaining in Guatemala. There is an absence of any bond
of attachment between Nottebohm and Liechtenstein and there is an existing long-standing connection between him
and Guatemala, a link that his naturalisation in no way weakened.
Outcome:
Guatemala is under no obligation to recognise a nationality granted in such circumstances. Liechtenstein consequently is
not entitled to extend its protection to Nottebohm and the claim must be held to be inadmissible.
Kaunda and Others v President of the RSA 2005 (4) SA 235 (CC) (The State’s exercise of diplomatic protection)
Facts:
 The applicants were a group of South African citizens who were arrested in Zimbabwe and detained in Zimbabwe on
a variety of charges. The applicants feared that they might be extradited from Zimbabwe to Equatorial Guinea and
put on trial, accused of being mercenaries and plotting a coup against the President of Equatorial Guinea.
 They contended that if this happened, they would not get a fair trial and, if convicted, that they faced the risk of
being sentenced to death.
 The applicants first approached the High Court for orders compelling the government to make certain
representations on their behalf to the governments of Zimbabwe and Equatorial Guinea, and to take steps to ensure
that their rights to dignity, freedom and security of the person and fair conditions of detention and trial were at all
times respected and protected in Zimbabwe and Equatorial Guinea.
 The application was dismissed in the High Court, and the applicants lodged an urgent application for leave to appeal
directly to the Constitutional Court.
- They wanted to be extradited to South Africa to ensure fair trials and they wanted to ensure that the trials
remained fair.

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 The application for leave to appeal directly to the Constitutional Court was granted.
Issue:
Is the government constitutionally bound to protect these rights? In other words, what is the reach of the Constitution?
“The issues involve the reach of the Constitution, and the relationship between the judiciary and the executive and the separation
of powers between them. The relief they claim is in effect a mandamus ordering the government to take action at a diplomatic
level to ensure that the rights they claim to have under the South African Constitution are respected by the two foreign
governments.”
Reasoning:
 The prevailing view is that diplomatic protection is not recognised by international law as a human right and cannot
be enforced as such. The court held that diplomatic protection did not fall under customary international law, but
rather remained he prerogative of the State, to be exercised at its discretion.
 Domestic law can only go beyond the borders of the State if it does not interfere with the sovereignty of another
state.
 Fundamental human rights are at the heart of South African democracy. Hence, South African citizens can and are
entitled to request the government to protect them under international law in relation to wrongful acts of foreign
states.
In sum, the court held that it is a fundamental flaw to argue that the government has a constitutional obligation to
require Zimbabwe and Equatorial Guinea to comply with the rights contained in our Bill of Rights. These rights bind our
governments and not foreign governments. The government does, however, have a constitutional duty to grant South
African citizens diplomatic protection against violations or threatened violations of fundamental human rights. The
manner, where, and when to do this is however up to the government’s discretion.
Outcome:
The court held that the appeal had to be dismissed and the order of the High Court confirmed.
PRACTICE QUESTIONS:
1. How does one determine the requirements of nationality for a particular state? Who would qualify as a
South African national?
2. Does the International Law Commission’s Draft Articles on Diplomatic Protection alter the ratio from
Nottebohm?
f) Legal Persons
(b) Nationality of corporations
In the Barcelona Traction, Light and Power Company case, the ICJ rejected the effective social link test laid
down in the Nottebohm case for determining the nationality of corporations on the ground that individuals
and companies could not be compared.
- Instead, the court held that the nationality of a corporation must be determined by the country of
incorporation or location of its head office.
The court also suggested several possible exceptions:

- If a company ceased to exist or lost its capacity to act – for example, if it were liquidated – shareholders
would have no state through which they could seek protection.
- If shareholders suffered direct damage through the action of a state, such as denial of the right to
participate in meetings.
- If the state of incorporation was responsible for the harm suffered by the company, or

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- If the state of incorporation had no genuine and effective link with the company.
In these circumstances, states of the individual shareholders’ nationality would be justified in exercising a right
of diplomatic protection.
ILC Draft articles on Diplomatic protection:

Article 9
For the purposes of diplomatic protection of a corporation, the State of nationality means the State under whose law the
corporation was incorporated. However, when the corporation is controlled by nationals of another State or States and
has no substantial business activities in the State of incorporation, and the seat of management and the financial control
of the corporation are both located in another State, that State shall be regarded as the State of nationality.
(c) Ships
Certain countries grant ships nationality on very liberal terms.

- There must be a genuine link between the State of nationality and the ship; in particular, the state must
effectively exercise its jurisdiction and control in administrative, technical and social matters over ships
flying its flags.
The Geneva Convention on the High Seas prohibits dual nationality and provides, in effect, that ships sailing
under two flags will be deemed stateless. Nationality may be changed only if there is a real change of
ownership or registry.
(d) Aircraft
The Chicago Convention on International Civil Aviation (1944) and The Paris Convention for the Regulation of
Aerial Navigation (1922) provide that the sole test for nationality is the state in which an aircraft is registered.
Barcelona Traction, Light and Power Co. Case (ICJ, 1970)
Facts:
Company was established under Canadian law for development of electricity supplies in Spain.
It was declared bankrupt by a Spanish Court and other steps were taken by the Spanish authorities injuring it.
At all times 88 percent of the shares were held by Belgian nationals.
Belgium brought this claim in respect of injury suffered by the shareholders as a result of injury to the company.
Spain argued that since the injury was to the company, and not the shareholders, Belgium lacked locus standi to bring its
claim.
Reasoning:
1. Belgium is bringing a claim based on that fact that Spain broke an obligation to its (Belgium’s) nationals.
 When a state admits into its territory foreign investments or foreign nationals (natural and jurist persons) it is bound
to extend to them protection of the law and assumes obligations concerning the treatment afforded to them
 These obligations are neither absolute nor unqualified
 Two types of obligations: those states owe to the international community as a whole (e.g. not to commit acts of
genocide- they owe these to everyone and are the concern of all states) vs and those obligations arising towards
another state in the field of diplomatic protection

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 Diplomatic protection: not all states have a legal interest in the observance of these obligations (unlike those owed
to the international community in general)- therefore only the party to whom these obligations are due can bring a
claim in respect of its breach (locus standi)
Therefore: have to establish whether the loss suffered by the Belgian nationals was as a result of violations of obligations
of which they were beneficiaries
Has a right of a Belgium been violated as a result of its nationals’ having suffered infringement of their rights as
shareholders in a company not of Belgian nationality?
Concept of limited liability company: separate legal personality of company and its shareholders, each with a distinct set
of rights e.g. separation of property rights- as long as the company is in existence the shareholders have no claim to the
company’s assets.
BUT a wrong done to the company frequently causes prejudice to its shareholders – however only the company has a
claim for compensation because only its rights have been infringed.
Shareholders have their own rights e.g. to vote at and attend shareholder meetings.
Belgium argued: that despite the acts complained of being directed at the company, the Spanish authorities caused
damage to the shareholders because they emptied all Barcelona traction shares of all real economic content (despite the
fact that they continued to exist)= violation of shareholder’s independent rights and therefore independent right to
redress.
This case involves factors derived from municipal law: the distinction between the company and its shareholders= refers
to municipal laws generally throughout the judgment
Belgium argues that they are entitled to offer diplomatic protection to its nationals who are shareholders in a company
against which another state has caused wrong= locus standi; even if other state has corresponding right in respect of the
company itself  no such rule of international law which expressly confers this right to a state to provide diplomatic
protection
Court refers to municipal law and the practice of “lifting the veil” for some purposes to take account of the identity of
persons behind the company
Acknowledges that there are special circumstances in terms of international law when the court can lift/pierce the veil in
the interest of shareholders
The court studies two specific situations, (1) When the company ceased to exist, and (2) Company’s national State lacking
capacity to take action on its behalf
Possibility 1: When the company ceased to exist

- Company is paralyzed but does not cease to exist or lack capacity to defend its own rights and interests of its
shareholders
- Economically precarious situation does not mean the company has ceased to exist
- Only if company ceased to exist do the shareholders have no right of redress through the company and then
therefore have an independent right of action for themselves and their government
- Company is in receivership in Canada- still exists
Possibility 2: Company’s national State lacking capacity to take action on its behalf
a). Is Canada, in law, the national state of Barcelona Traction

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- Attributes right of diplomatic protection of a corporate entity to the State under the laws of which it was
incorporated and in whose territory it has its registered office
- Criteria confirmed by international instruments and long established practice
- Sometimes further links to the state are required in practice
- Close and permanent connection with Canada was established, even though engaged in activities outside of Canada
- Canadian government made numerous representations to the Spanish Government which can only be viewed as
them exercising diplomatic protection in respect of the company
- No lack of capacity of Canada to act on its behalf
- The Canadian gov has stopped its action to provide diplomatic protection of its own free will
- State can exercise this diplomatic protection in any way it chooses and has discretion to cease it whenever it wants,
so if company feels it is insufficient then it has no remedy under int/l law  has to go to municipal law- may lay upon
state a duty to protect its citizens abroad
- BUT does not affect the position internationally
- Resort to Belgium extending diplomatic protection was not the only protection offered the shareholders on an int/l
level Canada could still help them but chose not to
Just because company’s own state does not wish to continue extending diplomatic protection does not mean Belgium
can exercise diplomatic protection instead, unless some other valid justification
Belgium contends that considerations of equity requires them to possess a right to extend diplomatic protection.
Necessary to apply the law reasonably but does not require the court to allow Belgium to extend diplomatic
protection in this case
Possible that if state of incorporation was itself responsible for the injury suffered by the company and the foreign
shareholder’s sole means of protection on the int/l level was through their State(s) of nationality then Belgium could
provide DP but this is not the case here
Whether could allow this on basis of equity: could create insecurity and confusion international economic relations 
- Shares can be widely scattered across the world and frequently change hands (even if shareholder only had 1% this
concept of equity would require that his/her nation be able to extend diplomatic protection).
- National state has discretion not to extend diplomatic protection to juristic persons, shareholders might feel this is
unfair.
- Could create parallel claims on same facts: for the company and for the shareholders.
- Creates a lack of security contrary to stability which is the object of international law to establish in international
relations
Outcome:
The court rejected Belgium’s claim and found it lacked ius standi
I.L.C. Draft Articles on Diplomatic Protection
Article 9
For the purposes of the diplomatic protection of a corporation, the State of nationality means the State under
whose law the corporation was incorporated. However, when the corporation is controlled by nationals of
another State or States and has no substantial business activities in the State of incorporation, and the seated
management and the financial control of the corporation are both located in another State, that State shall be
regarded as the State of nationality
Commentary

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 As will national persons the granting of nationality to a corporation is within the reserved domain of a State
 But international law determines the circumstances when a State may extend diplomatic protection on
behalf of a corporation or shareholders
 Barcelona Traction case incorporation alone is not sufficient as sole criterion for purposes of diplomatic
protection – in addition to incorporation and registered office there must be a “permanent and close
connection” between the State exercising diplomatic protection and the corporation
 Article 9 introduces the exception to the general rule that the State in which the corporation was
incorporated has the right to extend diplomatic protection
 Barcelona warns of creating confusion if you allow multiple states with which the corporation has a close
connection to exercise diplomatic protection Article 9 does not allow for multiple actions (use of OR)
 If conditions to the exception are met (business activities)- then the state exercising diplomatic protection
will be the state where the seat of management and financial control is.
Article 10
(1) A State is entitled to exercise diplomatic protection in respect of a corporation who was a national of
that State continuously from the date of injury to the date of the official presentation of the claim.
Continuity is presumed if that nationality existed at both these dates
(2) A State is no longer entitled to exercise diplomatic protection in respect of a corporation that acquires
the nationality of the State against which the claim is brought after the presentation of the claim.
(3) Notwithstanding paragraph 1, a State continues to be entitled to exercise diplomatic protection in
respect of a corporation which was its national at the date of injury and which, as the result of the
injury, has ceased to exist according to the law of the State of incorporatio
Commentary
 Difficulties arise corporation that has ceased to exist according to law of State in which it was
incorporated and national
 If say state cannot bring a claim because it no longer exists no state would be able to exercise diplomatic
protection
 Paragraph (3) adopts pragmatic approach- state can exercise diplomatic protection of a corporation that
was a national when it suffered the injury but ceased to exist as a result of the injury
Article 11
The State of nationality of shareholders in a corporation shall not be entitled to exercise diplomatic protection
in respect of such shareholders in the case of an injury to the corporation unless:
(a) The corporation has ceased to exist according to the law of the State of incorporation for a reason
unrelated to the injury; or
(b) The corporation had, at the date of injury, the nationality of the State alleged to be responsible for causing
the injury, and incorporation in that State was required by it as a precondition for doing business there.
Commentary
 Barcelona recognised two conditions when the state of nationality of the shareholders may exercise
diplomatic protection on their behalf:
1. Corporation ceased to exist in its place of incorporation test in Barcelona (supporte by the European
Court of Human Rights)- only in event of legal demise
2. State of incorporation was itself responsible for the injury suffered by the company and the foreign
shareholder’s sole means of protection on the int/l level was through their State(s) of nationality

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 paragraph (b) limits this even further- only when incorporation as required by the State as a precondition
for doing business there; had to have nationality of the State causing injury at the date of injury
Article 12
To the extent that an internationally wrongful act of a State causes direct injury to the rights of shareholders as
such, as distinct from those of the corporation itself, the State of nationality of any such shareholders is
entitled to exercise diplomatic protection in respect of its nationals.
Commentary
 Barcelona recognized right of state of nationality of shareholders to exercise DP when their own rights,
independent of the company’s, are infringed
 Belgium made it clear that it did not base its claim on an infringement of the direct rights of the
shareholder
 No exhaustive list of rights supplied
PRACTICE QUESTION:
1. How does one determine the nationality of corporations? (Explain the difference between the
approach in Nottebohm to the approach in Barcelona Traction).

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6. Chapter 14: STATE RESPONSIBILITY
Wrongful acts in international law
The source of law in this area: International Law Commission Draft Articles on State Responsibility. What is the
International Law Commission? The source of law is the draft articles on state responsibility. It is binding law.
Criminal responsibility for a state? Article 40 of the Draft articles on State responsibility. It speaks about
criminal responsibility – it is an innovation, it is not customary law. It is the only part of the draft articles that is
not a restatement of customary international law. Article 40 allows a state to be criminally responsible if there
is a breach of a preemptory norm e.g. a state shall not practice genocide, slavery, and so on.
International law, like municipal law, recognises the principle that a wrongful act should render the offender
liable to make reparations. There are, nonetheless, significant differences between international law and
municipal law:
1. International law does not distinguish between breaches of treaty and breaches of other obligations –
they all constitute wrongs.
2. Although international customary law and treaty law has a well-established concept of crimes, it
concerns only the wrongful acts of individuals. In other words, international law does not contemplate
states incurring criminal liability, in part because there is no supernational organ competent to
prosecute a state.
- In 1980, the ILC produced a Draft Code of Articles on State Responsibility that both legislated new rules and
codified existing customary law. This draft did not attract much attention because state responsibility had
been tied to the treatment of aliens.
- In 1996, the ILC published a new proposal in which state responsibility was dealt with in more general
terms. Again, however, this draft failed to attract much support, primarily because it introduced the novel
idea of states being able to commit criminal acts.
- In 2001, a new text was prepared – the Draft Articles. Article 40 obliges states to co-operate in order to
bring an end to any serious breach by a state of an obligation arising under a peremptory norm of general
international law. Although they have not yet been established as a formally binding convention, they are
largely a restatement of customary law, and hence an influential source of authority.
Unlike states, international organisations do not have full sovereign powers, and so cannot be held responsible
for their acts in their own right.
The elements:
1. Breach of an international obligation
2. Attributable to a state
3. Reparations due – damages that are payable are either material or moral damages – restitution
(restoring the status quo), compensation (cannot restore the status quo), satisfaction (e.g. an apology).
Requirements for liability
a) Breach of an international obligation
The principal requirement is an act or omission resulting in the breach of an international obligation. It is
important to note that state responsibility may arise even in the absence of any material breach.

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The injury suffered and the state’s responsibility may be direct or indirect a distinction that determines what is
needed to establish liability.
- If damage is indirect, a national of the claimant state is injured rather than the state itself. In this event, the
claimant state must establish the nationality of the claim.
- If responsibility is indirect, the wrongful act is committed by a private individual (or individuals) rather than
by an organ of state. In this case, the claimant must prove that the act can be attributed to the offending
state.
Article 1. Responsibility of a State for its internationally wrongful acts

 Every internationally wrongful act of a State entails the international responsibility of that State.
Article 2. Elements of an internationally wrongful act of a State

 There is an internationally wrongful act of a State when conduct consisting of an action or omission:
a) Is attributable to the State under international law; and
b) Constitutes a breach of an international obligation of the State.
Circumstances excluding wrongfulness – when there is a breach of law, but it is justified.
- Article 20 – Consent: state might be acting with the consent of other state. However, the act must remain
within the limit of the consent giving.
- Article 21 – Self-defence: This is subject to article 2.4 of UN Charter: A state must not act against another
state with violence (prohibition on the use of force). Therefore, self-defence may be used, but not self-
defence using force or violence.
- Article 22 – Countermeasures in response to an illegal act. However, the countermeasure must be

proportional to the original legal act.
- Article 23 – Force majeure (an act of God). In other words, it was impossible to perform your obligation
because there was an irresistible force or an unforeseen event that prevented compliance. However, one
cannot use force majeure if the state created the force majeure.
- Article 24 – Distress. In other words, there is a threat to life or limb. One cannot use defense if one caused
the distress.
- Article 25 – Necessity: One needed to safeguard an essential interest against grave and imminent
peril/danger. However, one cannot use this defense if one caused the situation.
Rainbow Warrior –
 Greenpeace owned the Rainbow Warrior. In 1985, Greenpeace was protesting against the nuclear testing
conducted by France in French Polynesia.
 It was docked in the New Zealand harbor at the time.
 The French government wanted to prevent Greenpeace from interfering with their nuclear testing. The
French government sent two of its agents to sink the ship.
 There was a photographer on board the ship and he drowned.
 The two French agents were arrested by the New Zealand police. They were charged with conspiracy to
commit arson, arson and murder. They pleaded guilty to manslaughter (i.e. culpable homicide).

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 They were sentenced to 10 years in prison.

 France demanded their release and New Zealand refused.
 The matter went to the UN Secretary General to mediate: an agreement was drafted between the two
states. France had to pay 7m dollars to New Zealand and the two agents were released into French custody,
but they had to spend 3 years in an isolated French military base. They only way they could leave the
military base was if both states consented to them leaving the island.
 The French medical team said that the first agent had an urgent health problem and had to be evacuated.
 New Zealand wished to have their doctor examine him. France ignored New Zealand and evacuated him
anyway.
 The second agent said she was expecting her first child. A day before the New Zealand was scheduled to
arrive, French notified New Zealand that the agent’s father was dying and that an evacuation was
necessary. New Zealand did not consent, and were upset.
 If there was a breach of the agreement drafted by the secretary general, agreement could go for arbitration
and so it did.
 The breach of the international obligation was in terms of the two agents on the island and them leaving
the island without New Zealand’s consent.
 In terms of the arbitration, it was held that in order for distress to apply there had to be a severe medical
condition.
- Agent 1: Although the agent could not have contained treatment on the medical base, the agent
should have been sent back after the emergency disappeared. There should have been a good faith
attempt to get consent from New Zealand.
- Agent 2: her evacuation was wrongful. There was, thus, no ground of defense to wrongfulness.
 By the time the matter was brought to the arbitrary body, the 3 years had already passed. The agents did
not have to be returned to the island. The damage suffered by New Zealand was not material damage. New
Zealand had suffered moral/legal/political damage.
Reparation:
• The arbitrary commission found that the judgment itself served as satisfaction – by saying this particular
state acted wrongfully is enough. States worry about their reputation.
• The arbitrary commission ordered that a fund be set up to promote friendly relations between the two
states. France had to make an initial contribution to the fund and they did so.
What else could the court have ordered?
b) Attributable to the state
When is conduct attributable to the state?
Define “state”?
- Conduct of a state organs (Art 4). A state organ is given quite a generous meaning. It is more than just the
three branches of government. It includes a person or an entity. In terms of a federal state, an organ of
state includes the federal organs as well as the state organs.
- Conduct permitted by any person or entity exercising governmental authority (Art 5) e.g. parastatal – state
owned enterprise. It need not be subject to executive control e.g. Eskom, SABC
- Organ of state acting for another state (Art 6)

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- State organ or entity (Articles 4-6) acting ultra vires (beyond the scope) (Art 7)
- * Private conduct directed or controlled by a state (Art 8). Private individuals committing acts that are
directed or controlled by the state. E.g. may be acting under state instructions – private security company
acting to protect certain national monuments.
 What is required is overall control (Prosecutor v Tadic)
 What is required is effective control – do not require overall control (Nicaragua case)
Both cases are authoritative. The Nicaragua case found approval in 2007 ICJ decision.
- Conduct carried out in the absence or default of official authorities (Art 9)
- Conduct of an insurrectional movement which later becomes the government (Art 10)
- Conduct acknowledged and adopted by a state as its own (Art 11)
 Iran Students case: the same situation as in Argo – state acknowledges and accepts the conduct of
the students and declares it as its own.
In sum, a wrongful act is attributable to a state if it was committed by:

- Any organ of state, including the head of the state, its legislative, executive or judicial organs
- Subordinate authorities, such as provincial assemblies or municipalities, whether or not they are part of
the formal structure of the state, provided that they are empowered to exercise governmental authority.
- An individual or group acting on the instructions of or under the control of the state
- A group exercising elements of government authority in default of the official authorities
- A state or entity constituting a member of a federal government structure
International law imposes liability for acts performed ultra vires. A state has no responsibility for the acts of
private persons who were not acting on its behalf  it cannot be private conduct.
States may also incur liability for the deeds of private citizens, even when the individuals were acting without
any state authority.
c) The conduct must be unjustified (excluding wrongfulness)
Conduct otherwise wrongful may be justified on the following grounds:

- That it was committed in self-defence,
- As a counter-measure, or
- Was due to force majeure,
- Distress,
- Necessity or
- That the complainant had consented.
Necessity might appear to be the easiest defence to allege, but it is subject to several restrictions:
a) The threatened act must seriously impair an essential interest of the State or States towards which the
obligation exists, or the international community as a whole
b) The obligation breached must not preclude the possibility of invoking necessity, as is the case with
certain humanitarian conventions, and
c) The offending state must not have contributed to the breach

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d) Fault – is fault a requirement of liability?
In most systems of municipal law, liability arises only if the offender was at fault; that is, he or she committed
the wrong negligently or intentionally. In international law, however, it is not entirely certain whether fault is a
necessary requirement – is liability strict or is an element of fault needed?
Elements of delict:
1. Wrongful conduct
2. Causation
3. Fault
The Draft Articles on State Responsibility don’t specifically require fault. However, commentary on article 2:
with regard to genocide, one could infer that fault is required. Whether fault is a requirement depends on the
circumstances and whether there is a subjective or objective requirement with regard to fault.
- Establishing fault is a matter for interpretation and application of the primary rules engaged in the given
case.
- It is hard to determine the intention of the state because the state is complex and the conduct itself might
require there to be a subjective element (e.g. genocide).
Reparations
Definition: full reparation can take the form of restitution, compensation and satisfaction (singly or in
combination).
Once the claimant state has secured its claim, the respondent state becomes liable to make reparations.
Reparation must, as far as possible, wipe out all the consequences of the illegal act and re-establish the
situation which would, in all probability, have existed if that act had not been committed.
Liability is limited in two senses:

1. A wrongdoer is not liable for damages that are too remote.
2. The concept of reparation precludes punishment. Hence, although damages may on occasion represent
more than the physical loss suffered, international law does not allow punitive damages.
Reparations take several forms:

- Restitution in kind
- Compensation
- Satisfaction
- Assurances and guarantees of non-repetition, either singly or in combination.
a) Restitution and payment of compensation
A state may be called upon to restore property or territory in order to effect a restitutio in integrum. When this
is not possible, financial compensation is usually paid.
If a direct wrong was suffered, the compensation normally reflects actual physical injury, together with
whatever insult was done to the national hour of the claimant.

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For personal injuries, the compensation represents not only patrimonial loss, but also pain and suffering,
mental anguish and humiliation.
Proprietary compensation must reflect the capital value of the property in question assessed on the basis of a
fair market value.
If an indirect wrong was suffered, the amount of compensation will depend not only on physical damage but
also on the degree to which a state’s rights were violated.
Article 35 – re-establish the situation that existed prior to the wrongful act.
b) Declaration of rights
For violation of territory or property rights, the most appropriate reparation may be a declaration of rights by
an international tribunal.
c) Satisfaction
Where a claim is settled in non-monetary form, the reparation is referred to as satisfaction. Article 37 –
satisfaction may be a kind of apology.
Rainbow Warrior case

Case about two French agents on a ship who sabotaged the ship, killing one person. They were arrested and
charged with manslaughter. The French government negotiated with New Zealand, wanting the released of the
two prisoners. Secretary General mediated the matter. The French agents had to spend three years on a French
island (military based) and France was meant to pay New Zealand a sum of money. They did so, but there were
a number of issues that arose as a result of the tensions of the two agents on the island – the one was sick and
got taken off the island, the other was first pregnant and then her father was dying of cancer. In both cases,
French government didn’t seek approval from New Zealand before releasing them.
Went to arbitration  three years had lapsed so the terms of the agreement had expired. A friendly relations
fund was set up, each had to contribute a sum of money.
Court said (with regard to satisfaction) that there was a non-material damage – moral damage suffered by New
Zealand. The court held that the judgment itself saying that the French conduct was in contravention of
international law was adequate satisfaction.
Chorzow Factory case

Expropriation of German owned industrial property in Poland. Case heard in the Permanent Court of
International Justice – predecessor to the ICJ. Court says, with respect to reparations, that reparation must so
far as possible wipe out al the consequences of the illegal act and re-establish a situation which would in all
probability have existed if the act had not been committed.
If restitution in kind is not possible (if cannot establish status quo), then compensation must be paid.
PRACTICE QUESTIONS:
1. How does the ILC Draft Articles define a ‘state’? is it a narrow or wide definition?
2. Is fault a requirement for liability? Explain.

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3. When would private conduct be ‘directed or controlled’ by a state? Give an example.

4. Explain the operation of article 37 (ILC Draft Articles) in the Rainbow Warrior case.

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7. Chapter 10: TREATMENT OF ALIENS
1. Introduction
Aliens = the treatment of foreign nationals and the way the state is meant to treat foreign nationals. Touches
on human rights and it is how human rights norms developed. There is a duty on the state in which the foreign
national is living and there is a right of the state from which the foreign national comes from to exercise
diplomatic protection.
Originally, aliens enjoyed no special protection under international law, and, in consequence, the state in which
they happened to be could treat them in any manner it saw fit.
In the period between the seventeenth and eighteenth centuries, the European powers insisted on certain
standards of treatment for their nationals. The concession treaties granted by governments in Asia and the
Middle East – often under duress – provided a basic framework for the set of rules that subsequently
developed on the treatment of aliens.
A person injured by the actions of a foreign state may not assert the international right of diplomatic
protection directly in the courts of the offending state, nor may his or her state of nationality intervene in the
legal processes of that state to assist the individual. Instead, the two states must resolve disputes at an
international level.
In 2006, the ILC produced Draft Articles on Diplomatic Protection, which restated certain customary
requirements to be fulfilled before states are entitled to institute proceedings on behalf of their injured
nationals.
- The Draft Articles deal with two critical requirements for enforcing the right of diplomatic protection:
1. The rules for determining a victim’s nationality
2. The rules for determining exhaustion of local remedies.
2. International and National Minimum Standards of Treatment
Should foreign nationals be treated the same as foreign nationals in a particular state, in terms of human
rights?
- The right to a fair trial  if a foreign national is arrested and is told of his or her rights, and is then placed
in an awaiting trial facility and the conditions in that facility (cell that is shared with nationals) are less than
adequate. If he is treated the same as nationals but this is below the international standard, which rule
would apply?
a) National
b) International
It becomes difficult when there is a debate about which standards should apply. There has been a
development of international minimum standards as a result (also known as international human rights norms)
International human rights can be divided into

1. Treaty or convention
2. Customary international law
Neer claim: US claimed that Mexico had failed to exercise due diligence in failing to find and prosecute the
national traitor.

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- Due diligence is a concept which involves the state’s duty to protect, which includes the right/duty to
prevent, the duty to investigate, and the duty to punish.
- The court, in this case, found that Mexico had done all that it could in the circumstances and rejected the
claim.
The test which the court created : ‘In order to constitute an international delinquency [the governmental acts] should
amount to an outrage, to bad faith, to wilful neglect of duty or an insufficiency of governmental action so short of
international standards that every reasonable and impartial man would recognise its insufficiency.’
Noyes claim: case between Panama and the US. In terms of this case, there was mob violence in Panama at a
political meeting. There were police officers that were present at this meeting and the crowd became quite
unruly. The presence of the police officers did not, however, increase. A US national was attacked and the
police did not prevent the attack. Once the attack had occurred, they did their best to prevent any further
harm. The perpetrators of the attack were not prosecuted. The US exercised diplomatic protection but the
claim was dismissed on the basis that the police were present, but they could not prevent the attack. In the
prevailing circumstances, they could not prosecute the perpetrators and the state could not be liable for this.
The international standard gave the USA and European powers a convenient justification for intervening in
domestic affairs, which resulted in it being steadfastly resisted in certain parts of the world.
States opposed to the notionally international standard argues that aliens should be treated in accordance
with national standards – on par with local citizens.
By the twentieth century, it was mainly developing countries and the socialist bloc that favoured the national
standard, while the developed states had come to favour the international standard.
The international minimum standard =

The treatment of an alien, in order to constitute and international delinquency, should amount to an outrage, to bad
faith, to wilful neglect of duty or to an insufficiency of governmental action so far short of international standards that
every reasonable and impartial man would readily recognise its insufficiency.
In essence, the international minimum standard requires proper respect for the life, liberty and property of
aliens, and it now has the support of the GA Declaration on the Human Rights of Individuals Who are not
Nationals of the Country in Which They Live (1985).
- Foreign nationals should have the United National Universal Human Rights Declaration and other Human
Rights instruments apply to them.
- This instrument sets out to codify minimum rights and also to provide a complementary set of standards
for the various human rights conventions sponsored by the UN.
- International human rights have gradually merged with the international minimum standards and it is not
quite clear that provisions in the Universal Declaration of Human Rights reflecting customary law were
derived from international minimum standards.
- These are equal treatment, the prohibition on torture and inhuman or degrading treatment or punishment,
and the right to a fair trial.
- Nyamakazi case – the court referred to the 1985 Declaration and accepted it. Despite the fact that we
accept the 1985 resolution, a foreign national’s political rights are restricted in a state – this can relate to
employment, private life and ownership of property.

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* Now the status of customary international law.
3. The Content of the International Minimum Standard
DIPLOMATIC PROTECTION can be action or judicial proceedings. The state has discretion whether or not to
exercise diplomatic protection.
Mavromattis Palestine Concessions case

“It is an elementary principle of international law that a state is entitled to protect its subjects, when injured by
acts contrary to international law committed by another state from whom they have been unable to obtain
satisfaction through ordinary channels…”
There are requirments that must be fulfilled before a state can sue another state:
 The injured person was its national;
 All local remedies have been exhausted; and
 The conduct of the defendant state violates the rules of international law relating to the treatment of
aliens.
a. Admission and Expulsion
General principle is that an individual has no right of entry into a state of which she is not a national.
The expulsion of the alien must be done in a humanitarian manner.
A state is generally free to lay down any rules it wishes to determine the admission of aliens, and, once they
have been admitted, aliens may be subject to restrictions that would not apply to citizens.
A state is not obliged to allow aliens to remain in its territory indefinitely, which implies that they are liable to
expulsion. In this respect, customary law lays down certain restrictions on when and how they may be required
to leave.
Article 13 (ICCPR) – binding if the state has signed and ratified it.
An alien lawfully in the territory of a State Party to the present Covenant may be expelled therefrom only in pursuance of
a decision reached in accordance with law and shall, except where compelling reasons of national security otherwise
require, be allowed to submit the reasons against his expulsion and to have his case reviewed by, and be represented for
the purpose before, the competent authority or a person or persons especially designated by the competent authority.
Rankin v Iran – this case was heard in a time of extensive nationalisation – ideologies were fought and the leader of Iran
took the view that western states were corrupt and captialism was bad. There were policies removing foreigners from
iran at the time – US nationals and corporations were targeted. Heard by the US Iran claims tribunal.
 Mr Rankin was employed by an American company in Iran and after the new leader took over, the situation in Iran
became volatile if you were a US national.
 Mr Rankin had not been specifically asked to leave. Because of the volatile stuation, he requirested permission from
the company to evacuate, which was later granted.

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 Once he left, he then sued for his loss of salary and his abandoned personal property due to his evacuation.
 Tribunal found that Rankin had not satisfied the burden of proving that the implementation of this new policy in Iran
was a substantia causal factor and could not prove that it was a reason for his departure.
 He, therefore, lost the case.
Dr Breger’s case –
 Deals with the expulsion from a US national in Italian territory. He was given 6 months to wind up his affairs and
leave.
 The issue was whether 6 months was enough
 Held that a state can expel someone however they wish, but must be done in a humanitarian manner and not in an
arbitrary manner.
 The court found that 6 months was enough time.
Ahmadou Sadio Diallo case (Republic of Guinea v DRC) -

 Looked at article 13.
 Diallo was a Guinean national living in the DRC. He was expelled from the DRC.
 He claimed that his expulsion was not done in accordance with the law of the DRC.
 Domestic law of the DRC stated that to be expelled, a decision must be reached and signed by the president and
prior to the president signing off, there should be a consultation with the national immigration board, who ought to
give reasons for their decision.
 Diallo argued that instead of the president signing, the prime minister singed.
 Court found that the president and prime minister in DRC have the same powers. However, no reasons were given
for his expulsion. Thus, he could not provide reasons against his expulsion.
 It was also found that there was no consultation with the national immigration board and thus seemed that the
decision to expel him was a political decision.
 The opponents argued that despite all this, he had not exhausted local remedies before approaching the ICJ for
diplomatic protection. The ICJ concluded that the local remedies available to him were actually not effective.
 KNOW: Article 13 was referred to and local remedies must be available and effective.
- In the normal course of events, aliens are expelled only if they violate a local law, in which case the
expulsion must be effected in pursuance of a legally reached decision.
- Furthermore, according to the GA Resolution on the Human Rights of Aliens, individual or collective
expulsion on grounds of race, colour, religion, culture, descent or national or ethic origin is prohibited.
Human rights treaties may place further limitations on a state’s power to expel aliens.
b. Administrative Justice
Article 2 of the ICCPR.
Avena case – deals with one of the great actors in international law – the US.
 In this matter, between Mexico and the US, there were three Mexican nationals who were sentenced to
death for committing murder by the Texas Supreme Court.
 When they were arrested by the Texan police, they were not informed of their right under the Vienna
Convention on Consular Relations – a foreign national arrested in a state is to be informed of their right to
consular access. These three Mexican nationals should have been informed of their right to access the
Mexican consulate.
 They were found guilty and sentenced in the Texas Supreme Court. Thereafter, the Mexican government
found out.

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 The US has signed the Vienna Convention and the optional protocol – allowed disputes to be decided by
the ICJ.
 When the matter went to the ICJ, it found that the US was in breach of the Vienna Convention and held
that the Mexican nationals should have been informed of their rights and their executions stayed.
 The US, however, did not abide by this order.
The administration of criminal justice is of particular importance to aliens, since a requirement that the
expelling state observe proper standards is usually a complainant’s first step to secure redress of any wrongs.
The international standard requires states to:

- Allow aliens full access to their courts
- Ensure a speedy trial and an impartial decision
- Provide interpreters when necessary
- Allow accused persons legal representation and access to their consular officials
Decisions given by courts in the state of residence that were due to corruption, pressure from executive organs
of government or unreasonably faulty procedures clearly fall short of the international standard. Merely
because a decision was erroneous, however, is no cause for complaint.
c. Injury to the Person
What happens if a person is injured by state officials?
A state must be able to account for aliens who have been taken into its custody. Although the detaining state is
not responsible for everything that might happen to a foreign national, it may be held responsible under both
conventional and customary international law for any cruel or unlawful treatment.
Quintanilla claim (Mexico v US)

- Heard in 1922 and decided by the General Claims Commission (a tribunal set up by Mexico and the US)
- Quintanilla had intentionally lassoed a young girl and threw her off her horse. The girl then complained to
her father and her father went to the sheriff
- The sheriff and the deputy arrested Quintanilla and took him to the county jail – so they say – however, he
was found dead lying beside the road on the way to the jail.
- The US did not say anything about this event and no one was prosecuted.
- Quintanilla’s parents claimed for loss due to their son’s wrongful death and they succeeded.
Today, we would look at the ICCPR to look at how the state is to treat foreign nationals, as well as the Vienna
Convention, among some others.
d. Duty to Protect Aliens
A state is not only oblige to refrain from acts that might injure the rights of aliens, but must also protect them
from attack by its own nationals.
The host state is not responsible for all the misfortunes that might befall aliens. There must be evidence of a
concerted attack being launched against foreigners and the host state’s unreasonable failure to exercise due
diligence in protecting them.

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e. Expropriation of Alien Property
Expropriation of alien property is not prohibited by international law. Expropriation denotes the transfer of
privately owned property to state control or ownership.
- Expropriation for nationalisation – should international or national standards apply? This question is not
settled in our law.
- There is disagreement about which conditions must be met, and what the conditions are that have to be
met.
There are three different forms of expropriation:

1. Confiscation – the removal of property as punishment for commission of an offence.
2. Requisitioning – the removal of property for public use during a national emergency, and its return to the
owner together with suitable compensation for the period of non-use.
3. Nationalisation – the permanent removal of property from private into public ownership or control for
economic or political reasons. This action is lawful provided that certain conditions are met.
The traditional rule is that expropriation must be NON-DISCRIMINATORY, for PUBLIC PURPOSE and
accompanied by PROMPT, ADEQUATE AND EFFECTIVE COMPENSATION.
How has the traditional rule been changed by General Assembly resolutions? Note that these two provisions
conflict with one another.
o GA Res 1803 – permanent sovereignty resolution (see page 304 of Dugard)
 In favour of the traditional rule
 Appropriate compensation in accordance with international law – does not refer to prompt, adequate and
effective compensation.
 There is no mention of non-discrimination
 However, it was adopted by 87 votes to 2 (there were 12 states that abstained). The states that voted for it
were mainly the western states.
o GA Res 3281 – charter of economic rights and duties of states (see page 304 of Dugard)
 Seen to be more accommodating to developing states.
 Prompted by developing states coming together to put forward their agenda.
 It refers to appropriate compensation determined by taking into account national law and all circumstances
the state considers appropriate.
 Any dispute is settled by municipal law – more power to the state.
 It was adopted by 120 votes to 6 (10 abstained). There is some debate about the significance of this – the six
states that voted against it were the major capitalist states.
The traditionally accepted view of the Western States is as follows:

- The nationalisation must not be in breach of treaty obligations.
- The property must have been situated within the territorial jurisdiction of the expropriating state, or at
least have been amenable to its jurisdiction.
- The act must be motivated by a bona fide public purpose.
- The nationalising state must not discriminate against the person or property of the individual concerned.
- Prompt, adequate and effective compensation must be paid.

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(i) Breach of treaty
Property expropriated in breach of a treaty constitutes an international wrong, and, on that ground alone is
unlawful. In consequence, the offending state is liable to do more than simply compensate the holder of the
property for its value.
- Rather, it must pay compensation sufficient to wipe out all the consequences of the illegal act and re-
establish the situation which would, in all probability, have existed if the act had not been committed.
- The reparations are the equivalent of a restitutio in integrum.
If, on the other hand, the expropriation were prima facie lawful, then an ‘adequate’ or ‘appropriate’
compensation would suffice.
A provision referring to general principals of law may have the effect of ‘internationalizing’ an agreement; a
proposition that was applied by an arbitration tribunal in Texaco v Libya –
favoured 1803 because 1803 reflected customary international law. 3281 seen as more of a political rather than a legal
declaration because it allowed for compensation to be subject to municipal law, which was not reflective of international
law.
 In this case, Libya had granted oil concessions to the American company, Texaco.
 The contracts contained clauses providing that ‘contractual rights expressly created by this concession
shall not be altered except by mutual consent of the parties.’
 Furthermore, under clause 28, the concessions were to be construed in accordance with the principles
of the law of Libya common to the principles of international law and in the absence of such common
principles then by and in accordance with the general principles of law, including such of those
principles as may have been applied by international tribunals.
 Two contracts provided for the reference of any dispute to international arbitration.
 The arbitrators held that the concessions had been internationalized: the contracts referred to the
‘general principles of law’ and arbitration at an international level; the parties were a state and a
private individual; the agreement covered a broad subject matter; namely, investment and technical
assistance to a developing country; the parties’ relationship was intended to last for a long period of
time; the contract entailed installation of permanent plant and acceptance of extensive responsibilities
by the investor.
 Once internationalized, the contract endowed the private party with certain international-law
capacities.
 While it was obviously not a state, it could still, under international law, invoke the rights specified in
the contract (a right to due compensation when its property was nationalised).
 Allowed for disputes to be settled by international arbitration, contract referred to general principles of international
law, agreements about economic development
In the case of ordinary contracts, however, expropriation obviously does not constitute breach of a treaty.
In the Aminoil Case, an arbitration tribunal held that a concession contract similar to that in the Texaco Case
could be lawfully superseded by nationalisation, because contractual limitations on a state’s right to nationalize
(generally expressed by so-called ‘stabilization’ clauses that bar changes in the parties’ relationship) would
have to be explicitly stipulated and would be valid for only a limited period. In addition, the tribunal held that
the circumstances surrounding the contract had undergone important changes since it was entered into:

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“This concession – in its origin a mining concession granted by a state whose institutions were still incomplete and
directed to narrow patrimonial ends – became one of the essential instruments in the economic and social progress of a
national community in full process of development.”
When dealing with concession contracts, tribunals have to take account of the major shifts in the international
law governing alien property rights over the past fifty years.
Arbitration tribunals have generally accepted the 1962 GA Resolution on Permanent Sovereignty over Natural
Resources, but not the Charter of Economic Rights and Duties, as a statement of customary law.
(ii) Public purpose
If property were expropriated simply in order to avoid contractual obligations or to win a political advantage,
the act would obviously not be for a bona fide public purpose.
Nonetheless, in practice, the existence of public purpose is extraordinarily difficult to contest, because it is
determined by the national policies of the state concerned.
Although public purpose is still required under the GA Resolution on Permanent Sovereignty, the Charter of
Economic Rights and Duties makes no mention of it.
Amoco v Iran – Dealt with the question of what public purpose means.
- The court held that there is no exact definition of public purpose – states have an extensive discretion.
(iii) Non-discrimination
Singling out the nationals or property of a particular state would be prima facie proof of discrimination, but
judgments of arbitral tribunals indicate that it is easy for expropriating states to avoid this stigma. Whenever a
state can show public purpose, discrimination becomes almost impossible to prove.
(iv) Compensation
Compensation is the most contentions issue in expropriation cases. According to the traditional rule, a right to
expropriate property is conditional upon payment of adequate, effective and prompt compensation.
- ‘Prompt’ does not mean that full payment must be made immediately. Provided that interest is paid,
payment may be deferred.
- ‘Effective’ means that the compensation must have real economic value to the recipient.
The adequacy of compensation is the main area of dispute. Owners deprived of their property seek
compensation for at least the market value – which can be extraordinarily difficult to measure when even the
threat of expropriation may have the effect of destabilizing markets – together with interest on that value,
anticipatory profits and other consequential losses.
Developing states contend that they should pay only ‘appropriate’ compensation, taking into account elements
of unjust enrichment in the background of the investment, namely the returns that the company has already
enjoyed from its investment.

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Appropriate compensation – the Aminoil arbitration interpreted this term to mean a flexible and equitable
formula that would accommodate the legitimate expectations of the parties, taking into account the history of
the investment.
Aminoil – resolution 1803 was applied and in determining what is appropriate compensation, the tribunal
looked at what the parties expected.
Today, foreign investment is largely regulated by bilateral investment agreements, in which transnational
companies seek as far as possible to insulate themselves from the vagaries of domestic and international law.
The success of a self-regulating relationship depends on both parties agreeing to abide by the award of their
self-chosen tribunal.
PRACTICE QUESTIONS:
1. Do national or international standards apply with regards to the treatment of aliens?
2. When can a state exercise diplomatic protection?
3. Is a state allowed to expel the national of another state? Explain using case law.
4. What is the traditional rule on expropriations? How have General Assembly resolutions
confirmed/altered this?

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International Law semester 1

International Law (University of Cape Town)

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Why do South African lawyers need to study International Law?

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What is International Law?

Enforced by police and judiciary

Natural and Legal Persons

State A State B State C

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Sources of International Law

Enforcement of International Law

a) The United Nations

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2. Chapter 2: SOURCES OF INTERNATIONAL LAW

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Article 38(1)(b) ICJ Statute “ a general principle of states accepted as law”

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Problem with opinio iuris:

(a) The problem with custom:

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The significance of consent depends on the nature of the particular argument.

(b) The legitimacy of custom

(c) Usage (usus)

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(d) Opinio iuris

Methods for proving customary International Law

(i) State practice

(ii) Judicial decisions

(iii) The writings of publicists

(iv) General Assembly resolutions

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• Find a primary source wherever possible!

Change of Customary International Law

Relationship between Treaties and CIL

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- Both parties must come to court with ‘clean hands’

An especially important general principle is the duty to act in good faith.

5. Ius cogens (special laws)

7. Codification and the progressive development of international law

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1. The Vienna Convention and its scope of application:

2. Requirements for a valid treaty:

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Partial consent: reservations

Reservations are generally allowed, unless:

Mode of expressing consent

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Signature and ratification:

Obligations on States that sign but don’t ratify a treaty?

Entry into force

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3. The Ius Cogens:

4. Persons negotiating treaties:

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