SOURCES OF INTERNATIONAL LAW

By sources of international law, we mean those provisions operating within the legal system on a
technical level and such ultimate sources as reason or morality are excluded, as more functional sources
as libraries or journals are employed. A survey of the process whereby rules of international law
emerge.
Article 38(1) of the statute of the ICJ is widely recognized as the most authoritative and complete
statement as to the sources of international law. It provides the following;
1. International conventions, whether general or particular, establishing rules recognized by the
contesting states
2. International customs as evidence of a general practice accepted as law
3. The general principles of law recognized by civilized nations
4. Judicial decisions and teachings of the most highly qualified publicists of various nations, as
subsidiary means of the determination of rules of law.
Basically, we have two sources of international law. Namely; formal sources and material sources
Formal sources: they appear to embody the constitutional mechanism for identifying law which are
applicable to the objects of the international system. It encompasses the first 3 points of Article 38(1) of
the statute of the ICJ
Material sources: they incorporate the essence or subject matter of the regulations. They are evidence of
the existence of the rules of international law. It encompasses the last point of the Article 38(1) of the
statute of the ICJ
There’s a difference between custom and usage. Usage is a general practice which does not reflect a
general legal obligation.
CUSTOMARY INTERNATIONAL LAW
The custom may be regarded as an authentic expression of the needs and values of the community at any
given time. It can be deduced from the practice and behavior of states generally accepted as laws.
In the Libya/Malta case, the court explained that the substance of customary law must be looked for
primarily in the actual practice (material facts) and Opinio Juris (Subjective belief that such behavior is
law) of states.
It can be ascertained based on 2 principles;
1. Material facts; this is, the actual behavior of states or in other words, what states actually do.
2. Opinio juris sive necessitatis (Opinio Juris); this is the psychological or subjective belief that
such behavior is law
MATERIAL FACTS
The actual practice engaged in by states constitutes the initial factor to be brought into account. Refer to
the slides for the examples of Material sources of Customs. There are a number of points to be
considered concerning the nature of a particular practice by states, including its duration, consistency
(continuity), repetition and generality
Elements of Customs
 Duration: In international law there is no rigid time element and it will depend upon the
circumstances of the case and the nature of the usage in question. In certain fields, such as air and
 space law, the rules have developed quickly; in others, the process is much slower. Duration is
thus not the most important of the components of state practice. The essence is rather in the
others
 Consistency and Uniformity: The basic rule as regards continuity and uniformity was laid down
in the Asylum case decided by the International Court of Justice (ICJ). The Court declared that a
customary rule must be ‘in accordance with a constant and uniform usage practiced by the
States in question’. The act in question must not necessarily be completely uniform but
substantially uniform. The must be seen to have been done continuously and repeatedly over a
period of time. There should be no inconsistency on the part of the states as far as the act is
concerned. Also in the Anglo-Norwegian case, the court explained that some degree of
uniformity and constant practice amongst state practices was essential before a custom could
come into existence. Let is however note that Bin Cheng has argued that in certain circumstances
repetition is not at all necessary provided the Opinio juris could be clearly established.
 Generality: Here universality in practice is not required. How widespread and uniform the act in
question is can also be a major factor. In the North Sea Continental Shelf cases, the ICJ
remarked that state practice, ‘including that of states whose interests are specially affected, had to
be both extensive and virtually uniform in the sense of the provision invoked’. However, the
Court emphasized in the Nicaragua v. United States case that it was not necessary that the
practice in question had to be in absolutely rigorous conformity with the purported customary
rule. It can be seen that the generality can be seen from the interests of the states on the practice
in question. This has been seen in the Asylum and Norwegian Fisheries case where the courts
explained that state practice including that of sates whose interests are specifically affected
should have been both extensive an virtually uniform in the sense of the provision invoked and
should moreover have accrued in such a way as to show a general recognition that a rule of law or
legal obligation is involved and this principle was enunciated in the North Sea Continental Shelf
cases to prevent Denmark and Netherlands form applying the equidistance rule to Germany since
there was the absence of the widespread and uniform practice of the states.

OPINIO JURIS
As said supra, this is the psychological or subjective belief that such behavior (usage) is law. The Opinio
juris, or belief that certain state activity is legally obligatory, is the factor which turns the usage into a
custom and renders it part of the rules of international law as seen in Article 38(1) (b) of the ICJ statute.
To put it slightly differently, states will behave a certain way because they are convinced it is binding
upon them to do so. States must have therefore be seen to have either expressly or by necessary
implication consented to or accepted that a particular practice is legally obligatory which is binding for it
to be qualified as a rule of international law. This was explained in the Lotus case where the court said
that “… it would merely show that States had often, in practice, abstained from instituting criminal
proceedings, and not that they recognized themselves as being obliged to do so; for only if such
abstentions were based on their being conscious of a duty to abstain would it be possible to speak of an
international custom…” and in the North Sea Continental Shelf cases the court was not ready to accept
the existence of a customary law where there was not an opinio juris on the issue of the equidistance to
limit Germany. We can also refer to the following cases on the issue of opinio juris; The Asylum case, Us
Nationals in Morocco case, The Nicaraguan case.

THE PERSISTENT OBJECTOR

Consent is very important when it comes to international law. States must consent to a custom before they
can be legally bound by it. The rule then is that a state may contract out of a custom in the process of
formation by objecting to it from the onset. Evidence of objection must be clear and express since there is
a presumption of acceptance which is to be rebutted The Asylum case. Any state that protests the
legitimising of a particular practice as a rule of international law would not be bound by it Anglo-
Norwegian Fisheries case. The toleration of the persistent objector is explained by the fact that
ultimately custom depends on the consent of states. However, this is subject to rules that have attained the
status of jus cogens (peremptory norm as per Article 53 of the Vienna convention of the law of treaties
e.g. prohibition of genocide, slave trade, torture, refoulement, Article 2(6) Of the UN charter which says
the principles of the UN charter would be binding on states once such act would affect international
peace and security etc.) and once a rule attains this status every state would be bound by it and it would
be immaterial that a state objected to its formation.

THE PRINCIPLE OF ACQUIESCENCE

As explained by the Chamber of ICJ in the Gulf of Maine Case, acquiescence can be defined as
“equivalent to tacit recognition manifested by unilateral conduct which the other party may interpret as
consent and as founded upon the principles of good faith and equity” Generally, where states are said to
acquiesce in the behavior or practice of other states without protesting against them, the assumption is
that such behavior is a legitimate. Acquiescence can amount to consent to formation of customary rule
and the absence of protest may imply agreement. In other words where a state or states take action which
they declare to be legal, the silence of other states can be used as an expression of opinio juris or
concurrence in the new legal rule. This means that actual protests are called for to break the legitimizing
process. Refer to the South China Sea arbitration where the objection by Palestine broke the legitimizing
process over them. Also in the Anglo-Norwegian fisheries case, the court explained that since the
delimitation system had been used continuously by states unchallenged and due to the lack of objections
from stats including England meant their concurrence of the emergence of a legal rule and there England
was bound.

REGIONAL and LOCAL CUSTOMS

It is established that it is possible for a customary law to develop which would only bind a group of states.
The Asylum case, The Right to passage over Indian Territory case, explained this principle.

TREATIES (CONVENTIONS)
Article 2(1) of the Vienna convention on the law of Treaties defines a treaty as” an international
agreement concluded between states in written form and governed by international law whether embodies
in a single document or in several related documents whatever its particular designation” The obligatory
nature of treaties is founded upon the customary international law principle that agreements are binding
(Pacta sunt servanda).
Therefore the elements of a treaty are;
 It must be an agreement between states
 In a written form
 Must be governed by international law
 Embodied in a single document or several related documents
 Needs not have a particular designation or name.

TYPES OF TREATIES
 1. LAW MAKING TREATIES; These are Treaties are intended to have universal or general
relevance or application. These are the agreements where states elaborate their perception of
international law on a given topic or even establish rules which are to guide them in future
international conducts. It is entered into among quite a substantial number of states and has a
wider range of applicability and obligations imposed. E.g. UN charter, Vienna convention on the
law of the sea.
2. TREATY CONTRACTS: apply only as between two or a small number of states on a limited
topic and may provide evidence of a customary international law. Example is bilateral treaties.
NB: Generally, states that have not ratified a particular treaty are not bound by its terms because of the
principle of consent Article 6 of the Geneva Convention on the continental shelf in The North Sea
continental shelf cases where the court explained that Germany had not ratified the treaty and was
therefore not bound by the article 6 of the Geneva convention on the continental shelf. However, there are
exceptions to the rule;
1. Codification; where the provision of the treaty is a codification of an existing international
customary law, a state that has not ratified the treaty would still be bound by the provisions of the
treaty because of this codification. Nicaragua v USA
2. Crystallization; where an act is just a practice as resulting from a treaty and not yet a law but
since it is generally practiced by states who are not even parties to the treaty, alongside the
nations under the treaty, it crystalizes into a customary international law. If a treaty codifies this
practice, a party that has not ratified said treaty would still be bound by the provisions of said
treaty by the fact that the treaty has codified the said practice.
3. Incorporation: where a state has an international law in their municipal laws for example the
common law, once a treaty codifies said law, a state would be bound by the provisions of said
treaty whether or not they have ratified said treaty.
4. If the treaty is on a jus cogens, then whether or not a state has ratified the treaty it would still be
bound by the Jus cogens

GENERAL PRINCIPLES OF LAW

Article 38 (1) (c) of the Statute of the ICJ refers to the general principles of law recognized by civilized
nations. These principles refer to the rules accepted in the domestic law of all civilized states. One of the
purposes of the general principles of law is to find remedy to situations which is not provided for in
treaties and customary international law. In Sea-Land Service Inc. v Iran the court explained that the
concept of unjust enrichment is widely accepted as having been assimilated into the catalogue of general
principles of law available to be applied by the international tribunals. Also in Corfu channel case
Examples of such principles are res judicata, estoppel, elementary consideration for humanity etc.

JUDICIAL DECISIONS
Judicial decisions under international law may not be a source of law per se since Article 59 of the ICJ
statute makes it clear that decisions of the court have no binding force except between the parties in
respect of that particular case. They can be best explained as law determining agency. Since the doctrine
of judicial precedence is not applicable in its strict sense at the international level, ICJ would not be
bound by the previous decisions and neither would other tribunals but over the years ICJ has as a norm
seen it prudent to follow its previous decisions when necessary and other tribunals seen it prudent to
follow the decision of ICJ where necessary, and state also seen to adhere to decisions of the ICJ
consistently, making the decisions of ICJ somewhat a customary international law but to be on the safer
side we refer to them as determining rule of laws since the throw more light on the rules of international
law.
LEGALISTIC WRITINGS
The writings of prominent authors can also throw more light on the international rules and even since
some of them are adhered to consistently can be a customary law. But since states are not bound by the
Writings of authors they can also be described as determining rule of laws. E.g. writings of Grotius,
Vattel and others.
RESOLUTIONS OF THE GENERAL ASSEMBLY
In general, these resolutions are not binding on member states, but, when they are concerned with general
norms of international law, then acceptance by a majority vote constitutes evidence of the opinions of
governments in the widest forum for the expression of such opinions. Even when they are framed as
general principles, resolutions of this kind provide a basis for the progressive development of the law and
the speedy consolidation of customary rules. Examples include the resolution on prohibition of the use of
nuclear weapons for war purposes; the declaration on the granting of independence to colonial countries
and peoples; the declaration on permanent sovereignty over natural resources; etc

THE RELATIONSHIP BETWEEN INTERNATIONAL

LAW and MUNICIPAL LAW
International law, has been widely described as a body of “rules” which are meant to be impartial but
are frequently ignored. This is so because of the absence of a normative system in IL, the absence of
centralized sanctions and thus some proponents like John Austin saying that IL is not law because of the
absence of the element of a sovereign or punishment. IL deals with the relationship that exists between
states and also among other subjects of international law. But the idea that IL is a body of rules is not
without criticisms because rules do not encompass the widespread of things that a law is. Rules just play a
part in laws but not the only part. IL is a process rather than rules – a continuing process of authoritative
decisions.
Municipal Law on the other had refers to the internal or national laws of a state. It deals with the
relationship between individuals within a state, individuals and the administrative bodies and among the
administrative bodies.
There is always that question of which law prevails should there be conflict between IL and ML or which
law is supreme. And how does IL take effect on ML of a state? In an attempt to solve these questions, 2
theories emerge. The Monist and the Dualist theories
MONIST THEORY
This view holds that both IL and ML form part of one and the same legal order. Thus rules of IL are
automatically applicable in the domestic sphere. They believe that IL is supreme over the ML. They are
naturalists and they believe in Laws given by God and that international law is one of such laws. They
believe in the well-being of individuals and international law which is supreme would be the best way of
obtaining this aim and therefore they hold that IL should automatically part of a states ML and in terms of
conflict, IL should prevail.
THE DUALIST THEORY
This view assumes that IL and ML are two separate legal systems which exist independently of each other
and thus the two can’t have effect on each other or overrule the other since they operate in different sects
and having different functions. ML dealing with individual relations within a stat and IL dealing with
relationship between states and thus none is supreme over the other. In a municipal court, IL have no
place and in IL court, ML have no place. They believe in positivism and believe in sovereignty and this
shapes their theory.

MUNICIPAL LAW in INTERNATIONAL LAW

Municipal law may be used as evidence of international custom or even general principles of law which
are both sources of international law. Municipal laws aid us to understand and discover a state’s legal
position on a variety of topics important to international law like acquisition of nationality. As a general
rule of international law, a state cannot use their municipal law as a defence in failing to carry out their
international obligations and this is spelled out by Article 27 of the Vienna convention on the law of
Treaties 1969 while Article 46(1) provides that 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. In Polish Nationals in Danzis the court explained that a
country cannot use its constitution with a view of evading obligations it owes under international law or
in a treaty. Also in the LaGrand case, the principle was enunciated. The France zones case, Alabama
Claims arbitration of 1872 the United States objected strenuously when Britain allowed a Confederate
ship to sail from Liverpool to prey upon American shipping. It was held that the absence of British
legislation necessary to prevent the construction or departure of the vessel could not be brought forward
as a defence, and Britain was accordingly liable to pay damages for the depredations caused by the
warship in question. This means that should a state domestic law contradict an international law, before
an international court, international law would prevail. States are required to perform their international
obligations in good faith, but are at liberty to determine the modalities of such performance within their
domestic systems. However, in cases where the international court decide to rule on an issue using a
municipal law or in conjunction with the international law, then it required of the international court to
apply the law in the same manner as would have by the municipal courts and thus the municipal laws be
referred to. In the Brazilian loan case, Brazilian municipal laws had to be referred to since the
international court saw it necessary to use Brazilian municipal law in the said case. However, such
expressions of the supremacy of international law over municipal law in international tribunals do not
mean that the provisions of domestic legislation are either irrelevant or unnecessary. The contrary, the
role of internal legal rules is vital to the workings of the international legal machine. One of the ways that
it is possible to understand and discover a state’s legal position on a variety of topics important to
international law is by examining municipal laws which in reading the points above have been illustrated.

INTERNATIONAL LAW in MUNICIPAL LAW

Before municipal courts, the application of international law is based on 2 doctrines;
Transformation. This is based upon the perception of two quite distinct systems of law, operating
separately and maintains that before any rule or principle of international law can have any effect within
the domestic jurisdiction, it must be expressly and specifically ‘transformed’ into municipal law by the
use of the appropriate constitutional machinery, such as an Act of Parliament. This doctrine grew from
the procedure whereby international agreements are rendered operative in municipal law by the device of
ratification (treaties) by the sovereign and the idea has developed from this that any rule of international
law must be transformed, or specifically adopted, to be valid within the internal legal order. Where
domestic legislation is passed to give effect to an international convention, there is a presumption that
Parliament intended to fulfil its international obligations. Salomon v Commissioners of Customs and
Excise, West Rand Central Gold Mining Co v R. This doctrine can be done in 2 ways;
 A statute may directly enact the provisions of the international instrument, which will be set out
as a schedule to the Act. E.g. The diplomatic relations Act 1962 is a direct transformation of the
provisions in Vienna convention on diplomatic relations 1961 and Vienna convention on consular
relations
 Alternatively, the statute may employ its own substantive provisions to give effect to a treaty, the
text of which is not directly enacted. In such a situation, the international convention may be
referred to in the long and short titles of the Act and also in the preamble and schedule. The text
of the international convention may be resorted to as an aid to interpretation of the statute.

Incorporation; holds that international law is part of the municipal law automatically without the
necessity for the interposition of a constitutional ratification procedure. It is favored by naturalists and
goes with the monist theory. International law is automatically part of municipal law without any need for
parliamentary ratification before it can be applied by municipal courts. Here customary international law
are seen as part of the municipal law, with the qualification that they are incorporated only so far as is not
inconsistent with Acts of parliament or prior judicial decisions of final authority. A rule of IL will not be
applied if it is contrary to a statute and the courts will observe the principle of stare decisis. Thus the clear
words of a statute bind the courts even if the provisions are contrary to IL. Commercial and Estates Co.
of Egypt v Board of Trade, Chung Chi Cheung v The King

Application of Customary international law before Municipal courts

In the UK customary international law is regarded as automatically incorporated into the internal laws of
UK. It is regarded as being part of the common law and therefore in Buvot v Barbuit where the court
explained that the law of nations in its full extent was part of the law of England. Also read West Rand
Mining co v R and Triquet v Bath which expressed the same principle. However, the customary
international law can only apply so far as it is not inconsistent with any Act of parliament and case law.
Where there is a conflict the statute would prevail Mortensen v Peters where the court through Lord
Dunedin explained that statute takes precedence over international law even if it would involve the breach
of a rule of international law. Also, where there is a conflict between customary international law and a
binding judicial precedent laying down a rule of English law, the judicial precedent prevails Trendex
Trading Corporation v Central Bank of Nigeria
The US also believe in the incorporation doctrine which they explained in the case of Paquete Habana
case and US v Belmont that customary international law is incorporated in the municipal law without the
intervention of congress and therefore binding on state courts since it has the status of federal law
respectively.
In Ghana, a similar position is held where in the Argentine warship case, the court explained that
warships enjoy sovereign immunity and not subject to arrest by other sovereign states indicating that
customary international law is a part of Ghanaian laws.

INTERNATIONAL PERSONALITY
By subjects of international law, we mean entities capable of possessing an international right,
international obligation and have the capacity to bring to bring an international claim to enforce its rights.
States were originally been viewed as the sole subjects of international law, but this position has been
undermined to a certain extent by recognition of international organizations and individuals as subjects,
possessing limited capacity.

Elements an entity must satisfy to be considered as a subject of international

 Must have international right provided for under a treaty or customary law
 Must have international duties or obligations imposed on it under treaties or customary
international law
 Must have the capacity to bring international claims arising from treaties or customary
international law
a. STATES as primary subjects of international law
Article 1 of the Montevideo Convention on Rights and Duties of States, 1933 lays down the most widely
accepted formulation of the criteria of statehood in international law. It notes that the state as an
international personality should possess the following qualifications:
 A permanent population (not migrating from place to place); population refers to a group of
individuals if the same species occupying a particular geographical area. The entity must have
human beings living in an established stable community to qualify as a state. Meaning nomadic
populations are not considered as states since they have no stable community.
 A defined territory (fixed frontiers in bilateral agreements); in order to recognize a state, it
must have definite borders. There has to be clear demarcations of its boundaries indicating land,
sea and air territories which is under control of its government. It isn’t necessary that there should
be a link between all the territorial borders of the state. Alaska for example is located far from the
mainland but still considered part of the USA.
 Government (in full control of its territory and affairs); there should be a stable political
organization in full control of the territory and its affairs and it must enjoy obedience from the
greater percentage of the nation. The government must be legitimate, so to speak, stable and
accepted by majority of the state and be effective in control.
 capacity to enter into relations with other states; the state should be sovereign such that it
should have no other authority over it such that it shouldn’t be under the control of any other
superior or external body and should have the power to freely enter into international relations
with other states and have the power. This point has been claimed as unnecessary. Guinea Bissau
in the 1970s was by US and Germany on the bases of only the first 3 elements without the last.
I.e. without political, technical and financial capabilities.
Rights and duties of states as subject of International law
Where states fulfill the criteria for statehood and international personalities, a number of rights and
consequences follow;
 international law is essential between states and created by states and as such states are to
participate therein
 decisions of the ICJ are binding on party states to a suit once their consent has been given El
Salvador v Honduras, Nicaragua intervening
 only states may institute proceedings before the ICJ Article 34(1) of the Statute of the ICJ
 only states may seek a remedy for international wrong in which case the state is imputed to have
suffered the wrong Mavrommatis Palestine concessions case
 in pursuing a claim, a state does not act as an agent of the individual aggrieved, but in its own
interest and as such compensation obtained belongs to the state and the individual has no legal
rights to such sums. Civilian war claimant’s association v The king
 Non- state entities
A number of international entities are denied statehood because they do not meet certain criteria. Some
which are;
 colonies
 mandated and trusteeship territories

b. INTERNATIONAL ORGANIZATIONS
Initially, as already stated, states were the sole subjects of international law. However, this is no longer
the case. In the Reparations for Injuries case where a Swedish national working for the UN was killed in
the New City of Jerusalem, in the course of deciding the course of action, the advice of the ICJ was
sought in which the court explained that “the UN was to be allowed to exercise limited international
personality”. International personality according to the court was essential to give effect to the purposes
and principles of the organization and could clearly be presumed from the intentions of the draftsmen of
the charter. According to the court, international organizations possesses rights, duties and powers and
without such recognition, it would be difficult for them to operate on the international floor. The pre-
conditions which an international organization must satisfy to be recognized as being capable of being a
subject of international law was thus outlined by Ian Brownlie;
1. It must be a permanent association of states with lawful objects equipped with organs; we thus
see in the UN for example having organs like the General assembly, the Security council, etc. and
even having a constitution, the UN charter.
2. There must be a distinction in terms of legal powers and purposes between the organization
and its members; the organization must have its own objectives and powers which are different
from that of its member states.
3. There must be the existence of legal powers exercisable on the international plane and not
solely within the national system of one or more states: to show that an international
organization has legal capacity, the following are to be evidenced;
a. That is has treaty making power
b. That it has immunities for its members, assets and HQ etc.
c. Has capacity to espouse international claims
d. Enjoys recognition from other states
e. Has its own responsibility; such that the organization should be responsible for its own
actions and inactions and it should be not shifted unto member states as held in the
International Tin Council Appeals.
f. Should operate in a legal framework which spells out their powers and not just a conference
of states.

Although international organization has been recognized by the ICJ at the international level, it was not
until recently that a national court had to consider the implication of this personality at the national level
and this occurred in Arab Monetary fund v Hashim & others where the court explained that,
international organization has no personality in English law in the absence of an order-in-council giving
such effect but in the present case, the standi of the organization could be upheld on the basis of the rule
of private international law that confers standing in the English court to foreign corporate bodies
incorporated in other states.
 c. INDIVIDUALS
As a general rule, individuals are deemed objects if international law and cannot exercise international
claims unless done on their behalf by their national states Us v Noriega. However, where a treaty
expressly confers or imposes obligations on individuals, then the individual may be conferred upon some
rights and privileges. In the Jurisdiction of the courts of Danzig (Danzig Railway officials) case, the
court explained that where an agreement was specifically intended to establish definite rules creating
individual right and obligation and enforceable in national courts, international rights could be conferred
on individuals. Examples are treaties prohibiting genocide, crimes against international peace, war crimes
etc. Also, some treaties give capacity to individuals to bring international claims against their own states
or other states for breaching an international obligation owed them before international courts or tribunals
e.g. European convention on Human rights 1950, the provision of the Treaty of Rome which permit
individuals to institute proceedings before the court of European communities.
Some international law also imposes certain duties directly on individuals and their violation may result
in criminal responsibilities. For example, as already stated, the duty to refrain from act against peace and
crimes against humanity, war crimes and genocides The Nuremberg Tribunal and Tokyo war tribunals
after the 2nd World War for instance marked the beginning of individuals instead of their state as subjects
of international law arising from individual criminal conducts. Also, the duty to refrain from act of piracy
can also be an example. In any case, individuals have been made to face trials before international courts
like the International Criminal Court (ICC) for example the trial of Saddam Hussein. Another example of
acts is the Hijacking of planes which are now considered to be crimes of quasi-universal jurisdiction as
created by convention Tokyo convention on offences and certain other acts committed on Board
Aircrafts 1963, Hague convention for the suppression of unlawful seizure of aircraft 1970

d. SUI GENERIS ENTITIES (controversial candidates for international personalities)

There are certain entities that do not fall under any of the categories given supra, but satisfy the
requirements an entity must poses to be a subject on international law. Example is Vatican City which is
in Italy but independent of Italy with their own government known as Holy See and their own
ambassadors known as Apostolic Nunso. Though it does not qualify as a state, despite its minuscule
territory and population, it enters international relations with states and organizations and enjoys rights
and obligations under international law. For example, it is member of WHO and ILO which are
organizations of UN.
Another example of sui generis entities are federal states like Nigeria and USA where the individual
states within the federation are capable of entering relations with other countries or international
organizations without the consent of the federal government. Article 32(3) of the Bonn constitution
explains that in so far as the individual states of Germany can legislate for themselves, then they may
conclude relations with other foreign states with the consent of the federal government of Germany.
A final example of sui generis entities are internationally administered territories. Here we talk of the
trust mandated and trusteeship territories and even colonies. They do not satisfy the requirements of
statehood but do enjoy right and obligations of international law and therefore can be considered as
subjects of international law.

e. MULTI/ TRANS-NATIONAL CORPORATIONS

Some corporations though created in one country gain some much wide spread globally, e.g. Shell that
because of the tendency of municipal law conflicting with their operation and control, the gain rights to
enter relations with states and even the capacity to institute proceedings against other subjects of
international law in international courts. They also enter into contractual agreements with states the
breach of which they can sue Texaco v Libya, and also Starrett Housing corp v Iran

RECOGNITION OF STATES AND GOVERNMENTS

Recognition is an information from an already existing state (government) to a new state or government
(hereafter referred to as S/G’S) expressing its intention to enter into stable international relations with it.
Its legal effects are that;
1. It declares the appearance of a new S/G to establish legal conditions for normal economic,
political, social or other relations between the existing state and newly emerged state
2. It stabilizes the international position of the new state to exercise its basic international rights
3. It possesses legal consequences for the new state.
A state may emerge through one of the following ways
1. As a result of a social revolution
2. As a result of national liberation struggles and/or end of a colonial rule
3. As a result of the union of two or more pre-existing states: e.g. Tanganyika and Zanzibar
united to form Tanzania
4. As a result of cessation of a part of a territory: Singapore left the federation of Malaysia to
form a state on their own.
5. A collapse of a treaty union into several states: After the collapse of USSR, many states
emerged e.g. Belarus, Azerbaijan, Ukraine etc.
NB: Recognition provides the legal basis for political, cultural and other relations between states. It does
not create a state. A state may exist with or without recognition from other states however at the same
time, recognition extends the international contacts of a state and is the vehicle through which a state can
operate internationally.
Recognition operates in two ways; it may operate to recognize a newly emerged S/G and it can also be
used express approbation or denunciation of the political nature of a states government to denounce
recognition of said government.
Modes of Recognition
Recognition may be express or implied. Expressly, it may be done formally through;
1. a congratulatory letter sent to the new S/G
2. formal statement stating that a state recognizes that the new state has been formed
Impliedly, it may be through;
1. by an unequivocal act intended to indicate that recognition is being conferred. For example,
through the exchange of ambassadors or diplomatic missions.
2. Existing states entering trade relations with the new state.
3. A bilateral agreement between the existing state and the new state
4. Existing states voting in approval for the new state to join an international organization
 Theories of Recognition
In the previous topic, we discussed on the criteria for entity to be considered a state. However, that is just
one school of thought that has been widely accepted. There are however, competing theories in
considering the recognition of an entity as a state. These include Declaratory and Constitutive
The Declaratory theory
Believers of this theory are of the view that recognition of a state is a subjective act and qualification of
an entity as a state is an inherent right. They assert that coming into existence of a S/G is a matter of fact
and recognition is merely an acknowledgement of an existing factual situation. According to them, S/G’s
are conferred with international personality status at the moment at which they come into existence once
they satisfy the criteria indicated in the Montevideo convention. Article 3 of the Montevideo convention
even seems to support this position when it stated that “the political existence of a state is independent of
recognition of other states…” this was upheld in the Tinoco Arbitration case and in Deutsche
continental Gas-Gesellschafts v Polish state. Thus, once the Montevideo criteria has been satisfied, per
the declaratory theory, the entity is ipso facto a subject of international law as a state.
The Constitutive theory
Believers of this theory are of the opinion that recognition is not only subjective, but also objective as
well. States aside satisfying the Montevideo requirement must also be recognized by the international
community before it can be said to be legally existing. Unless and until recognition has been afforded, no
international personality has been established. They hold that there is no legal obligation to recognize an
entity as a state but the danger here is that, not recognizing the entity as a state would not be a defence
against international obligations owed to the entity in international courts. In municipal courts, this may
hold. In Luther v Sagor, the court explained “that if a foreign country is not recognized by this country,
then the courts of this country need not to take notice of such government or state”. Thus, before a
municipal court, recognition of states is purely constructive.
Why the need for recognition at all?
Newly constituted states/governments need to be recognized because;
1. To enable them join international organizations: of course, if the countries of Africa do not
recognize an entity, then it cannot join the AU
2. To enable them enter international relations with pre-existing states
3. To enable the new state, enter treaty agreements with other states.
4. To enable the new state, acquire diplomatic and sovereign immunity for its officials and
assets within the territories of the recognizing state.
Recognition of Governments
In reality, the recognition of states is not as controversial as the recognition of governments. There is no
legal duty on individual members of the international community to recognize a new government but
rather it remains a matter for individual states to decide if they would extend recognition to a new
government or not. In Generally, recognition of a state is prima facie recognition of its government under
international law since after having a government is one of the requirements of the Montevideo
convention. The issue then is how the new government came into power. If the new government came
into power through an unconstitutional means, then recognition may not be extended to it by existing
states or governments. Unconstitutional means here does not mean a non-democratic means but rather,
what the recognizing states deem as an unconstitutional means. So, it can happen that a recognizing state
may recognize a state but does not recognize the government of that state if it does not approve of how
that government came into being.
 Forms of Recognition of Governments
For a government to be recognized, it must have effective control in all or majority of the portion of its
state. Recognition comes in 2 forms; De facto which is preliminary or partial recognition pending a
formal legal recognition by the recognizing state. The de facto is a political recognition. De jure
recognition a is complete legal recognition of the authority of a government.
De jure recognition
With this recognition, where the recognizing state accepts that the effective control displayed by the
government is permanent and firmly rooted and that there are no legal reasons detracting from this, such
as constitutional subservience to a foreign power. A recognizing country would send a de jure recognition
where it is satisfied that;
1. The government is well established and stable
2. The government enjoys obedience from its people
3. The government has effective control over its territory
4. Or the government has the potency of being permanent i.e. staying in power in accordance with
the municipal laws. (this is the most important which distinguishes de jure from de facto)
De facto recognition
Recognition de facto implies that there is some doubt as to the long-term viability of the government in
question. De facto recognition involves a hesitant assessment of the situation, an attitude of wait and see,
to be succeeded by de jure recognition when the doubts are sufficiently overcome to extend formal
acceptance. United Kingdom recognized the Soviet government de facto in 1921 and de jure in 1924. In a
civil war situation for example as in the Spanish civil war, the United Kingdom, while recognizing the
Republican government as the de jure government, extended de facto recognition to the forces under
General Franco as they gradually took over the country.
The difference between the two recognitions is that where de jure is both factual (political) and legal
recognition, de facto is just factual (political) recognition. Where the recognizing state gives a de facto
recognition, they can only have consulates (which can be headed by carrier diplomats but not
ambassadors) in the state of the latter but where de jure, then embassies and exchange of ambassadors
(represent the incumbent government and where there’s a change of government there would be a change
of ambassadors) can occur since now, the recognizing state would be dealing legally government to
government. There are in reality few meaningful distinctions between a de facto and a de jure recognition,
although only a government recognized de jure may enter a claim to property located in the recognizing
state. Additionally, it is generally accepted that de facto recognition does not of itself include the
exchange of diplomatic relations. The validity of acts done by a de facto government is restricted to acts
done in relation to persons and property in the territory which the de facto government exercise control
effectively Haile Selassie v Cable and wireless ltd
Retroactive recognition
Once recognition is given, it takes effect not from the date the government was established and not when
the recognition was given. Thus, if the government was recognized as a de jure government sometime
later after de facto recognition was given, the principle is explaining any legal act the de facto
government undertook before gaining de jure recognition would still be validated. However, the caveat is
that the act of the de facto government should have been within its territory where is has effective control
and not outside or acts illegally undertaken. The retroactivity principle even operates where there was
non-recognition such that if the non-recognizing state had agreement with the unrecognized state and later
recognizes them, the agreement would still be valid because of the principle Luther v Sagor
The retroactive recognition rule does not operate to invalidate legal acts done by a de jure government
before it lost its de jure status to a de facto government as explained in Civil air transport incorporated v
Central air transport corporation.
Effect of recognition at the international level
At the international level, all that is needed is the declarative theory. Such that the only relevant issue to
be answered would be the government element of the Montevideo criteria. Did the government exercise
effective control over the territory or major part of the territory at the time of the transaction as held in
Republic of Somalia v Woodhouse Drake Carey Suisse S.A. If one is able to prove that at the material
time of the transaction, it was in effective control of the affairs and people within the territory, then it
would qualify as a valid government the Tinoco Arbitration case where the raised an objection that since
Britain did not recognize Tinoco’s government, Britain could not bring an action in pursuance to
something Tinoco’s government did. The court held that it was immaterial whether Britain recognized it
or not. All that mattered was whether Tinoco’s government qualified as a government at the time of the
act and it was held that it was.
NB: recognition at the international level is purely declaratory, constitutive comes into play before the
municipal courts.
NON- RECOGNITION
Non-recognition operates differently before municipal court and on the international level. We would take
them in seriatim
Non-recognition before municipal courts
Let us remember that before municipal courts, the constitutive theory is in operation. States must
recognize the new government before to them it can be an entity. Now where they do not recognize the
state the following are what transpires before municipal courts.
1. the unrecognized state cannot claim immunity from the jurisdiction of the court of the non-
recognizing state. Its assets and officials would all not have immunity within the non-recognizing
state The Annette & Dora case
2. when there’s conflict of laws of the unrecognized state and that of the non-recognizing state, the
municipal court of the non-recognizing state would give no credence whatsoever to the laws of
the unrecognized state Adams v Adams, Carl Zeiss Stiftung v Raynerand Keeler ltd
3. the unrecognized state would have no capacity to sue before the municipal court of the non-
recognizing state City of Berne v Bank of England
4. the government of the unrecognized state would also not be entitled to sovereign immunity by
the courts of the non-recognizing state Annette & Dora case, Luther v Sagor
Non-recognition in international courts
Since the declaratory theory operates before international courts, it is immaterial that a state does not
recognize the new state or government. In the Tinoco arbitration case, the arbitrator stated “non-
recognition cannot outweigh the de facto character of Tinoco’s government according to the standard set
by international law”. Also look at the case of Deutsche continental Gas-Gesellschafts v Polish state.

TERRITORIAL ACQUISITON
As prescribed by the Montevideo convention, one of the requirements an entity must satisfy to attain
statehood is the existence of a territory. The state must show its capacity to exercise sovereignty over said
territory. An essential criterion of sovereignty is the possession of the identifiable geographical area
within which exclusive governmental and legal functions are exercised. For a state to claim ownership
over a territory, there must be evidence of state sovereignty over the territory. Evidence of sovereignty
was held in Western Sahara case to manifest in 2 ways;
1. the state’s intention to act as a sovereign
2. some actual exercise or display of such authority or sovereignty by the state
Sovereignty over a territory can be explained as the right to exercise the functions of a state within a
territory to the exclusion of any other state i.e. the competence of a state to exercise complete control over
persons and property within the territory as explained in the Island of Palma case. A state may also
acquire other territories within which it may exercise sovereignty which is what we would discuss here.
We have the traditional modes of acquisition and the more modern means of acquisition.

Traditional modes of territorial acquisition

1. CESSION
Cession is the transfer of territory from one state to another usually in the form of a treaty and required
that one party manifest an intention to assume sovereignty and the other an intention to relinquish it. Thus
if one state completely acquires the territory without the ceding state’s intention to transfer the territory,
the acquisition would still not be successful. NB: should defects exist in the ceding state’s title, then the
purported cession would be vitiated by said defect. Thus if the ceding state had no valid title or
sovereignty over the territory, then the cession would be invalid and the receiving state gets no title to the
territory (nemo dat quad no habet) The Island of Palma case. Some examples of cession are; the
purchase of Louisiana from France and Alaska from Russia.

2. PRESCRIPTION
This is the acquisition of a territory which is not terra nullius (in Latin means nobody’s land). Here the
territory is acquired unlawfully or in circumstances where the legality of the acquisition cannot be
demonstrated. The doubtful title is legitimized by the passage of time, the acquiescence of the former
sovereign and the exercise of effective control by the new state. Acquisition by prescription should be
evidenced through a peaceful and uninterrupted sovereignty over the territory by the new state endured
for a certain period of time Botswana v Namibia. Thus in The Island of Palma case the arbitration held
that there were evidences of exercise of sovereignty over the area by the Dutch without any protest from
Spain. The peaceful and uninterrupted exercise of sovereignty by Dutch of the territory meant that Dutch
had acquired title to the island by prescription. NB: acquisition of this form thus would not be valid if the
new state faces protest from the former sovereign or from interested states. Thus acquisition must be
accompanied by acquiescence on the part of the state relinquishing sovereignty or interested states
Chamizal arbitration (USA v Mexico).
In the nutshell, if a territory is not terra nullius, and another state occupies that territory and exercises
sovereignty over it making the exercise notorious to the notice of other states as well as the former
sovereign, if the former sovereign or no interested state protests against the new sovereign’s acquisition,
then the new territory is said to have been acquired through prescription. The lack of protest from the
former sovereign over the territory signifies recognition of the new sovereign over the territory and as
such the former sovereign would be estopped from later claiming sovereignty over the territory.
 3. OCCUPATION
This is the acquisition of a territory which is terra nullius- the territory belonged no one before
acquisition or the former sovereign had abandoned it. Before acquisition, the territory was uninhabited
and even if it was inhabited, it was by primitive people lacking any political and social structure and as
such if the inhabitants are shown to have a political and social structure, it cannot be termed a terra nullius
Western Sahara case. NB: however, mere discovery does not guarantee a state’s sovereignty over a
territory. Mere discovery only gives a state inchoate title to the territory. A state must after discovery
exercise effective control and sovereignty over said territory. To acquire title through occupation, a
number of conditions must be satisfied;
a. The territory must be terra nullius Cooper v Stuart
b. The possession constituting occupation must be carried out by a state and not a private individual
unless it can be proved that the private individual acted in pursuance of some authority received
from their government or that the government has exercised jurisdiction through them
c. The must be under open, effective and peaceful control of the state. Taking up possession of the
territory by the state and exercising exclusive authority over it. This would depend on the nature
of the territory. Where the land is a barren one without any inhabitants, the state may place a
structure on it to show possession for example erecting its flag on the land. If the area is inhabited
by primitive people, a state can do so by establishing within the territory organization capable of
making laws respected. Where the territory minimal, less action is needed and where it is vast the
otherwise applies. Possession must be actual and effective and not nominal Clipperton island
case
d. The acquiring state must demonstrate an animus occupandi or will to act as a sovereign and this
should be made aware to other states Clipperton island case. In the Legal status of Eastern
Greenland case, the court explained that a claim to sovereignty based on occupation would
depend on (1) an intention and will to act as a sovereign (2) some actual exercise or display of
such authority.
NB: in a situation where the territory was abandoned by a previous sovereign, to successfully claim the
abandoned territory, it must be shown that the previous sovereign manifested animus relinquendi
Clipperton Island case.

4. CONQUEST
This is where a losing state in a war cedes its territory to the winning state after the end of a war. It was
only valid after the end of the war and not before. Evidence of the war ending can be through the defeated
state entering into a treating ceding its territory to the victor or showing that the loosing state does not
pose any resistance to the victor in exercising sovereignty over the territory. This mode of acquisition has
been rendered outmoded and invalid through customary international law that prohibits use of force by
states and by Article 2(4) of the UN charter expressly disregarding acquisition by conquest.

5. ACCRETION & AVULSION

Accretion is the gradual movement of land from one territory to another such as silting of river banks.
Avulsion is the process of a violent and sudden change such as a dramatic change in the course of a river
or the creation of volcanic formation within one’s state. If the accretion occurs on a boundary of a river
between two states, then the international boundary changes accordingly. In the Chamizal arbitration
(USA v Mexico), the commission decided based on a treaty agreement that the tract that had been created
by the gradual process of accretion belonged to the USA. However, with avulsion despite the changes in
physical landscape, the international boundaries remain the same.

MORDERN MODES OF DETERMINING TERRITORIES

1. The Doctrine of UTI POSSIDETIS
This means the colonial frontiers or borders existing as at independence constitute a tangible reality and
that all member states pledged themselves to respect such borders. States are expected to take their
borders as they were handed to them by their colonial masters after independence Burkina Faso v Mali.
The principle however does not affect voluntary agreements between states to adjust their borders after
independence.
2. Self-determination
This principle provides that people have the right to select their own form of government and social
organization. In the status of south-west Africa case, the ICJ acknowledged that the principle of self-
determination was a significant factor in deciding whether Namibia should become an independent state
on the territory which was formerly South-west Africa.
3. Boundary treaties
Treaties defining border have special status in international law. Borders established by such agreements
have a permanence that exists independently from the fate of the treaties which set them out.
The Doctrine of Intertemporal
The general rule is that in a dispute concerning acquisition of a territory, the applicable laws and rules of
international law are those in existence at the time the alleged acquisition was made and not a later date or
rules that existed at the time the claim was made before the court or tribunal. As such even if the rules
which applicable then are no more in existence, they would in the present case before the court be
applied. For instance, territory acquired through conquest before the development of the rule against the
use of force, should a dispute arise concerning such a territory would have the rules of conquest applying
and not the rule against the use of force. In the Island of Palma case, Umpire Huber explained that “a
judicial fact must be appreciated in the light of the law contemporary with it and not of the law in force at
the time when a dispute in regard to it…” The general assembly in 1970 declared that the prohibition
against the acquisition of territory by conquests should not be construed as affecting the titles of
territories acquired before the coming into force of the un charter.

THE LAW OF TREATIES

A treaty is a generic term used to denote an international agreement between states. It is an instrument
states use to accomplish certain results including making rules of conduct. They can also be used for
transactional purposes. In the context of international law, treaties become equivalent to legislative
instrument or bodies for laying down rules for the conduct of states. They are so used because customary
international law is slow growing and even difficult to prove. Treaties, on the other hand, are a more
direct and formal method of international law creation. The International Convention on the Law of
Treaties was signed in 1969 and came into force in 1980.
Article 2(1)(a) of the Vienna convention on the law of treaties (hereafter referred to as VCLT) defines a
treaty as “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…”
Elements
a. A treaty is an agreement between states; A treaty is basically an agreement between parties on
the international scene. Although treaties may be concluded, or made, between states and
international organizations, they are primarily concerned with relations between states Article 1
of the Vienna convention on the law of treaties. This however is not to be interpreted that states
are the only entity eligible to enter a treaty. It only means treaties entered into between states and
other subjects of international law or between other subjects of international law would not be
governed by the VCLT.
b. The agreement must be in writing; an unwritten agreement cannot qualify as a treaty. This
doesn’t have to take a particular for such that even letters exchanged by heads of states in some
circumstances can be considered as treaties
c. It must be governed by international law: if it is not governed by international law, it can’t be a
treaty. The validity of the agreement, its enforcement, mechanisms and procedures must all be in
accordance with the rules of international law. The subject matter itself must be one of a matter of
international law.
d. It may be embodied in a single instrument or in 2 or more related instruments: we can have
1 agreement found in a number of documents which are related or in 1 single document e.g. a
framework agreement and then annexes to the main agreement- the statute of the ICJ us annexed
to the UN charter.
e. The nomenclature of treaties: once an international agreement satisfies the preceding
requirements, it, matters not what it is called it remains a treaty. It may be called a charter,
protocol treaty etc.

MAKING OF A TREATY
 NEGOTIATIONS
Making of a treaty begins with negotiations by states who are interested in the subject matter. They come
together to negotiate how to go about it. In most cases, the negotiation takes place within a framework of
an international organization. If no organization is interested, the states themselves may take the initiative.
The negotiations take place in a conference to which interested states send their delegations with each
delegation coming with their countries’ proposals. It key to note that the delegates sent for the conference
must have the have the authority to negotiate on behalf of the represented state. That authority is called
Full powers. Article 2(1)(c) of the VCLT 1969 defines full powers as “Full powers" means a document
emanating from the competent authority of a State designating a person or persons to represent the State
for negotiating, adopting or authenticating the text of a treaty, for expressing the consent of the State
to be bound by a treaty, or for accomplishing any other act with respect to a treaty”. Thus, as a general
rule, one needs to produce full powers before one can represent a state in a negotiation or when it is
evident from the practice of the state involved that they intend to consider that person as representing the
State for such purposes and to dispense with full powers Article 7(1) (a) and (b). However, certain
persons are exempted from showing full powers. They can represent their state without having to produce
full powers Article 7(2)(a) i.e. heads of states, heads of government and Ministers of foreign affairs. 7(2)
(c) heads of diplomatic missions(ambassadors) however, they are restrained to between the accrediting
state and the state to which they are accredited and also for the purpose of adopting the text of a treaty.
NB: because of financial constraints one ambassador can be accredited to a number of countries and he
would have full powers in pursuance to all these countries. 7(2)(c) representatives to international
organization may also be deemed to have full powers so they can negotiate on issues within the
framework of said accredited organization without the need to show full powers. The impulse of the
general rule is that if the person representing the state doesn’t have full powers and doesn’t fall within the
persons given in Article 7, and negotiates on behalf of a state, then his negotiating and subsequent
agreement would be rendered without legal effect unless the state subsequently confirms his decision
arrived at, then the state would then be bound Article 8 of the VCLT.

 ADOPTION OF THE TEXT

After an agreement has been reached after negotiations and drafted, there is the need to adopt the text.
The adoption is an act to confirm what has been collectively agreed on, either unanimously or by
consensus (where some parties may have some reservations but do not formally raise it as an objection).
Where there is no unanimity, Article 9(2) provides that the adoption would take place by the vote of 2/3rds
majority of the representing states. If they want to use a different means to adopt the text, the same 2/3 rds
majority vote would decide what alternative means they would use.

 AUTHENTICATION OF THE TEXT

This is to certify the text of the treaty adopted as the final text of the treaty. It is to allow states to have the
original and true copy of the text kept somewhere safe (the depository) which can be referred to later.
This is important because subsequently, the treaty is translated into different languages which may change
the meaning and thus the need to have an original reference. The authentication may be by such
procedure as may be provided for in the text or agreed upon by the states participating in its drawing
up Article 10(a). if there exists no such indication, then it may be authenticated by the signature,
signature ad referendum (signing pending approval to complete authentication) or initialing by the
representatives of those States of the text of the treaty or of the Final Act of a conference
incorporating the text Article 10(b).

 EXPRESSION OF CONSENT TO BE BOUND

After the text has is adopted, there is the need for the state to express its consent to be bound before the
treaty can enter into force. There are a number of ways a state may express its consent to be bound. These
are by signature, exchange of instruments constituting the treaty, ratification, acceptance, approval or
accession, or by any other means agreed by the states involved if so agreed Article 11.

a. By Signature
Article 12 provides that the consent of a State to be bound by a treaty is expressed by the signature of its
representative when the treaty provides that signature alone shall have that effect or it is otherwise
established that the negotiating states were agreed that signature alone should have that effect or the
intention of the state to give that effect to the signature alone appears from the full powers of its
representative or was expressed during the negotiation thus notwithstanding whatever municipal law says,
once the treaty is signed there’s no recognized process of expressing consent to be bound save the
signature. If its signature ad referendum, then once confirmation is received, then the signature would be
sufficient to prove state consent.
b. By Exchange of instruments constituting a treaty
The consent to be bound may be expressed by instruments exchanged between state parties if the treaty so
provides or if the states agree that the exchange of instruments should have that effect Article 13.

c. By Ratification
The consent to be bound may be expressed by ratification if the treaty itself provides that signature is not
exhaustive but ratification is needed or the negotiating states agreed that ratification is required or if the
representative of the state signs the treaty subject pending ratification or if the intention of the State to
sign the treaty subject to ratification is apparent from the full powers of its representative or was
expressed by the representative during the negotiation that his signature is valid only after ratification
Article 14(1)(a)(b)(c)(d).
Ratification operates in 2 stage process;
 Domestic ratification; at the national level in accordance with the constitution or internal laws of
the state. Laying the document before the competent body for their approval. When this is
completed, the state now has to undertake the international act of ratification
 International ratification: which takes place at the international level. This has to do with
undertaking the international act of ratification i.e. depositing the instrument of ratification with
the depository or exchanging the instrument of ratification with the other state parties.
These 2 acts complete the ratification process however international law is only concerned with the
international ratification thus where the international ratification has been done by the foreign minister or
who ever has the power to communicates their consent to be bound to the depository then the state would
be bound notwithstanding that the domestic ratification may have not been done because you cannot
invoke your national law as a defense against ones international obligation Article 27

d. By Acceptance
Article 14 (2) provides that the consent of a State to be bound by a treaty is expressed by acceptance or
approval under conditions similar to those which apply to ratification
e. By Accession
Accession is a term used to express a state’s consent to be bound by a treaty when they are not a
negotiating party or when the treaty has been adopted or has already enter already in force and wants to
join a treaty which is already in operation by accession. Consent to be bound may be expressed by
accession when the treaty provides that such consent may be expressed by that state by means of
accession or it is otherwise established that the negotiating states were agreed that such consent may be
expressed by that state by means of accession; or all the parties have subsequently agreed that such
consent may be expressed by that State by means of accession Article 15

Exchange or deposit of instruments

Article 16 provides that unless otherwise provided by the treaty, instruments of ratification, acceptance,
approval or accession establish the consent of a State to be bound by a treaty upon:
 Their exchange between the contracting States;
  Their deposit with the depositary or;
 Their notification to the contracting States or to the depositary, if so agreed
Article 76 and 77 deals with depository. A depository is either a state, person or international
organization that is designated by the parties to a treaty to perform certain administrative functions in
relation to the treaty. Article 77 lists some functions of the depository, i.e. keeping custody of the original
text of copy and full powers delivered by reps of states, preparing copies of original texts, translating
them and transferring them to parties, receiving and keeping signatures etc.

 ENTRY INTO FORCE OF TREATIES

A treaty doesn’t necessarily become binding once states express their consent to be bound but rather they
accept the obligation subject to the entry into force of the treaty. For the obligations and provisions of the
treaty to become binding, the treaty must enter into force. The obligations of the treaty become operative
once the treaty enters into force and at this point any act which inconsistent with the obligations of the
treaty would be considered as a breach of the treaty. Thus, if the treaty hasn’t entered into force, even
though a state may have ratified it, you cannot hold it to its obligations under the treaty because the
obligations are not operative and thus cannot be invoked against. Article 24(1) provides that a treaty
enters into force in such manner and upon such date as it may provide or as the negotiating states may
agree. Otherwise if this fails, the treaty enters into force when all negotiating states establish their consent
to be bound Article 24(2). Article 24(3) provides that when the consent of a state to be bound by a treaty
is established on a date after the treaty has come into force (accession), the treaty enters into force for that
state on that date, unless the treaty otherwise provides. For multilateral treaties, normally there would be
the minimum number of ratifications (expression of consent to be bound) before the treaty would enter
into force set by the treaty.
Thus, the question posed is what is the status of the treaty before it enters into force? The answer seems to
be embedded in some exceptions to the rule that the obligations and provisions of the treaty becomes
operative only after the treaty has entered into force;

The Exceptions to the general rule that the provisions and obligations of a treaty only become
operative after the treaty enters into force
1. The Good faith principle; Article 18 explains that when a state signs a treaty, expressed its
consent to be bound pending its entry into force, it must refrain form acts which are injurious to
the treaty’s objects and purposes. Once a state wants to still engage in acts injurious to the
purpose and objects of the treaty, then that state would have to withdraw its signature or express
that it does not intend to be bound by the treaty anymore.
2. Before the treaty enters into force, there are some provisions of the treaty that may be operative.
Article 24(4) provides that the provisions of a treaty regulating the authentication of its text, the
establishment of the consent of States to be bound by the treaty, the manner or date of its entry
into force, reservations, the functions of the depositary and other matters arising necessarily
before the entry into force of the treaty apply from the time of the adoption of its text. This means
that notwithstanding the fact that the treaty hasn’t entered into force and its provisions not
operative yet, those provisions of the treaty that regulate those stated in Article 24(4) would apply
from the moment the treaty is adopted. This is because if those provisions are not made to apply,
then there would be no legal basis for any of the acts stated in the article. Thus, although the
treaty as a whole is not operative since it has not entered into force, those provisions stated in the
article would be effective form the time the treaty is adopted in order to give validity to those
acts.
3. Article 25 on provisional application pending the entry into force of the treaty. The treaty or part
of it may apply provisionally pending its entry force if the treaty so provides or the negotiating
 states have in some manner so agreed. Article 25(2) explains that unless provided by the treaty or
agreed on by the negotiating parties, the provisional application of a treaty or a part of a treaty
with respect to a state shall be terminated if that state notifies the other state parties of its
intention not to become a party of the state.

OBSERVANCE and APPLICATION of TREATIES

1. After a treaty enters into force, the provisions of the treaty become operative. The general rule
which is stated in Article 26 is that every treaty in force is binding upon the parties to it and must
be performed by them in good faith that (pact sunt servanda). North Atlantic coast fisheries
arbitration
2. Also, a general rule provided for in Article 27 is that a state may not invoke provisions of its
municipal law as justification or defense for its failure to perform its obligation in a treaty
Belgium v Senegal, The Argentine warship case

Non-retroactive application of treaty

As a general rule, a treaty cannot have a retroactive effect on contracting states unless the parties agreed
that the treaty should have that effect on the state parties or the treaty specifically or expressly states so
Article 28. Other than that, a treaty generally cannot back-date to affect actions that took place before the
entry into force of that treaty. for example, the UN charter prohibits the use of force against other states,
however states that used force against other states before the entry into force of the charter cannot be
found culpable by the charter. The declaration of the general assembly in 1970 supports this assertion.
And even Article 4 of the VCLT also provides that …the Convention applies only to treaties which are
concluded by states after the entry into force of the present Convention with regard to such States i.e.
after December 31 1980

Exceptions to the principle of non-retroactivity

The exception is the doctrine of continuing violations which explains that if the act in question occurs
before the entry into force of the treaty but its effect continuous subsequent to a state’s ratification of the
treaty, then the treaty would operate to invalidate the act notwithstanding that the act begun before
ratification by the state and the state may be found liable by the provisions of the treaty.

Territorial application of treaties

Article 29 provides that unless a different intention appears from the treaty or is otherwise established, a
treaty is binding upon each party in respect of its entire territory.

RESERVATIONS
In respect of multi-lateral treaties especially, the idea is to encourage as much as possible, participation by
all interested in the treaty. Sometimes, unanimity may not be achieved about certain provisions of the
treaty to which these disagreements sometimes may not be so substantial to the real entire process.
However, if these disagreements are not addressed may discourage some states from joining the treaty
altogether. Since the whole idea is to get as much interested states to participate in the treaty, the law of
treaties makes provisions for situations where states can be still be part of the treaty and still make some
exemptions for themselves in the application of the treaty i.e. mechanisms to accommodate states who
want to exclude some parts of the treaty to be binding on them though the state would be bound by the
treaty, they may either totally exclude or modify a provision of the treaty pertaining to themselves.
Article 2(1)(d) defines a reservation as a “unilateral statement, however phrased or named, made by a
State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to
exclude or to modify the legal effect of certain provisions of the treaty in their application to that State”
A reservation must be express, must be formulated in writing and communicated to all the contracting
states and states entitled to parties to the treaty Article 23(1). The reservation doesn’t not remove the
provision, it remains and binds all other states save the state making the reservation who would not be
bound by that provision. Reservations are made when states are expressing consent to be bound i.e.
signing, ratifying or acceding to the treaty.

The rules regulating reservation

As a general rule, a state may make a reservation to a treaty except as provided by Article 19, the treaty
prohibits reservations e.g. the European convention on Human rights, or if the treaty provides that only
specified reservations, which do not include the reservation in question, may be made or if the treaty does
neither of the above, if the reservation made is generally incompatible to the object and purpose of the
treaty.

Acceptance and Objection of Reservation

As a general rule, reservations must be accepted to become operational however, where the treaty itself
has expressly authorized reservations, then acceptance by other contracting state is not required for the
reservation to become operational and is deemed as implied automatically Article 20(1).
However, as provided for in Article 20(2), when it appears from the limited number of the negotiating
states and the object and purpose of a treaty that the application of the treaty in its entirety between all the
parties is an essential condition of the consent of each one to be bound by the treaty, a reservation
requires acceptance by all the parties for the reservation to be effective and operational without which it
would not. Also, when a treaty is a constituent instrument of an international organization, then unless the
treaty otherwise provides, a reservation requires the acceptance of the competent organ of that
organization Article 20(3).
In the case of a multilateral treaty, when a state makes a reservation which is accepted by some other
state, on the entry into force of the treaty, the reservation becomes binding as between the accepting states
and the reserving states only. If a state does not accept the reservation, that would not prevent the treaty
from entering into force for the reserving state or objecting state unless a contrary intention is definitely
expressed by the objecting state Article 20(4)(b), and upheld in the Reservations to the convention on
Genocide case. Thus, as a general rule, as between the reserving state and objecting state, the treaty, or
the provisions to which the reservations are made if so expressed by the objecting state, would not have
application between those states. All that is needed for the reservation to become operative is at least one
other contracting state to accept the reservation Article 20(4)(c). The acceptance or objection of the
reservation must be express and in writing and must be communicated to all contracting states and other
states entitled to become parties Article 23. A state shall be considered to have accepted a reservation if it
raises no objecting after 12 months of it been notified of the reservation or it can express its objection
when it is expressing its consent to be bound whichever is later Article 20(5).
Article 22 deals with withdrawal of reservation.

Legal effect of the reservation

Article 21(1)(a)(b) provides that, when the reservation is accepted by the accepting states, it modifies the
relationship between the accepting states and reserving states to the extent of the reservation. Article
21(3) provides that when a state objecting to a reservation has not opposed the entry into force of the
treaty between itself and the reserving state, the provisions to which the reservation relates do not apply
as between the two States to the extent of the reservation and as such neither the reserving nor objecting
state can invoke that provision against the other the English Channel arbitration. If a dispute to which
the provision applies arises between the two states, it will be settled under general principles of
international law.
The general rule again is that so long as the treaty itself has not prohibited the making of reservations,
state parties are allowed to make any reservation they want however, the test to check these reservations
would be the test of compatibility with the object and purpose of the treaty and if they do, then the
reservation would be rendered invalid.

An important question posed is whether a reservation can be made to human rights treaties?
Human rights treaties are to protect the human rights of their citizens, thus enter into these treaties to
protect citizens. Now if reservations are made to provisions to human rights treaties, then as a general
rule, it invariably defeats or incompatible with the object and purpose of the treaty.
This question came before the Human Rights Committee who in addressing the question on whether
reservations can be made to the ICCPR adopted the General comment 24 on reservations to the
International Covenant on Civil and Political Rights (ICCPR). In inter alia states that; “the covenant
neither prohibits nor mentions any type of reservation… however, the absence of a prohibition on
reservation does not mean every reservation is permitted… Article 19(c) of the VCLT provides the
relevant guideline (the object and purpose test)…In an instrument which articulates many civil and
political rights, each of the many articles and indeed their interplay, secures the objectives of the
covenant. The object and purpose of the covenant is to create legally binding standards for human rights
by defining certain civil and political rights and placing them in a framework of obligations which are
legally binding for those states which ratify and to provide an efficacious supervisory machinery for the
obligations undertaken. Reservations that offend peremptory norms would not be compatible with the
object and purpose of the covenant. Although treaties that are mere exchanges of obligation between
states allow them to reserve inter se application of rules of general international law, it is otherwise in
human rights treaties which are for the benefits of persons within their jurisdictions. Accordingly,
provisions of the covenant that represent customary international law and when they have a character of
peremptory norms (jus cogens) may not subject to reservations. Accordingly, a state may not reserve the
rights to engage in slavery, to torture, to subject person to cruel, inhumane or degrading treatments or
punishments, to arbitrarily deprive persons of their lives, arbitrarily arrest and detain person, to deny
freedom of thought, conscience and religion, to presume a person guilty unless he proves his innocence,
to execute pregnant women or children, to permit the advocacy of national, racial or religious hatred, to
deny to persons of marriageable age the right to marry or to deny to minorities the right to enjoy their
own culture, profess their own religion or use their own language. And while reservations to Article 14
may be acceptable, a general reservation to the right of fair trial would not be.”
NB: Peremptory norms are that which no derogation can be made Belilos v Switzerland

APPLICATION OF TREATIES on 3RD PARTIES

The general rule of international law is that a treaty does not create rights or obligations to a state that has
not consented to it. This actually a rule of customary law which has been codified in Article 34 of the
VCLT. A treaty does not bind 3rd states without their consent. However, the parties to a treaty can intend
an obligation on a 3rd state however this is not binding until the 3rd state expressly accepts the obligation
in writing Article 35. As long as obligations are concerned, there is the need for the 3rd state to accept in
writing. But if it is concerned with the conferring of rights on 3rd states Article 36 explains that where a
treaty creates rights for a 3rd state or group of states to which the 3rd state is party or to all states, all the 3rd
state has to do is assent to it and even where the 3rd state doesn’t, the assent would be presumed so long as
the contrary is not indicated by the 3rd state unless the treaty otherwise provides Free zones case. This
means right conferring treaties aren’t as stringent like obligatory conferring treaties.
Another exception to the general rule is that when the rules in the treaty are or become customary law,
then the rules in the treaty would be binding on the 3rd state even though they are not parties to the treaty
Article 38. Other ways would be through crystallization, codification or generation North Sea
continental shelf cases. We would discuss this at group meeting.

INTEPRETATION OF TREATIES
3 schools of thought or approach on how treaties should be interpreted;
1. The intention of the parties’ approach: In order to find a meaning of a word or provision, let’s
look at what the parties intended in making the treaty. The words of the treaty should be
interpreted to give effect to the intention (the subjective intent) of the parties the Land and
Marine boundary between Cameroon and Nigeria case
2. The textual or ordinary meaning approach: the use of the literal rule more or less. This
approach says that whatever was intended by the parties was put in the words thus the ordinary
meaning of words or the literal meaning of the words used should be used in interpreting the
treaty.
3. The Teleological/ aims and objects approach: this approach seeks to espouse that in
interpreting the treaty, the words should be looked at in a manner that gives effect to the object
and purposes of the treaty. This mostly can be seen from the treaty’s preamble.
The Vienna convention has its own approach on how treaties should be interpreted and thus lays down
certain rules for interpreting a treaty. Article 31 lays down the rules of interpretation of treaties. It
provides that a treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose. The Vienna
convention thus tries to reconcile the various approaches to interpretation of treaties however it gives
primacy to the text (the textual approach). But also allows the interpreter to look the context and purpose
as subsidiary aids to interpreting the treaty. Article 31(2) explains that the context comprises the text
itself, the preamble of the treaty, any annexes to the treaty, any agreement concluded between the parties
in connection with the conclusion of the treaty and accepted by the other parties as an instrument related
to the treaty. Article 31(3) provides that if after the conclusion of the treaty, there has been any
subsequent agreement between the parties regarding the interpretation of the treaty or the application of
its provisions this shall be taken into account together with the context in interpretation. Also, any
subsequent practice regarding the interpretation of the treaty may also inform the tribunal or interpreter in
his interpretation of the treaty.
Article 32 provides that after the preceding provision has been exhausted and yet the meaning of the
treaty is still ambiguous or obscured or leads to a result which is manifestly absurd or unreasonable, then
the convention allows the interpreter to have recourse to supplementary means of interpretation, including
the preparatory work of the treaty (the travaux preparatoire), and the circumstances of its conclusion in
order to confirm the meaning resulting from the application of article 31, or to determine the meaning
when the interpretation according to article 31 leaves the meaning ambiguous or obscure; or leads to a
result which is manifestly absurd or unreasonable. The Travaux preparatoire may include the record of
the negotiations, any preparatory proposals submitted to the negotiations, views of certain experts on
certain aspects of the negotiations sought, in some circumstances the works done by the international law
commission, earlier drafts etc.

INVALIDITY OF TREATIES
Some factors can invalidate a treaty. Some of these factors can make the treaty voidable, others void ab
initio or void.
VOIDABLE FACTORS

1. Non-compliance with municipal law requirements

Without prejudice to Article 27, the convention allows a small window in which a state can invoke its
internal law as an excuse to withdraw is consent because it is in conflict with its internal law making it
voidable. Article 46 provides that the state may invalidate the treaty only if the consent to be bound has
been expressed in violation to municipal law and that violation must be manifest and must be a violation
of a rule of internal law which is of fundamental importance and Article 47 also adds that if the authority
of a representative to express the consent of a state to be bound by a particular treaty has been made
subject to a specific restriction, his omission to observe that restriction may not be invoked as invalidating
the consent expressed by him unless the restriction was notified to the other negotiating states prior to
his expressing such consent. In practice however, this window of opportunity is very difficult to utilize
Nigeria v Cameroon concerning the Bakassi peninsula conflict.

2. Error/ mistake
Article 48 provides that a State may invoke an error in a treaty as invalidating its consent to be bound by
the treaty if the error relates to a fact or situation which was assumed by that state to exist at the time
when the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
However, Paragraph 1 shall not apply if the state in question contributed by its own conduct to the error
or if the circumstances were such as to put that State on notice of a possible error. This also very difficult
to utilize because a because as explain in paragraph 2 for instance we expect that when a state is signing a
treaty, it would do all due diligence and be sure that everything is correct before signing. Thus, if the state
did not due diligence and wants to rely on the state it may be very hard to extricate the treaty Cambodia v
Thailand about the Temple of Priya. NB: An error relating only to the wording of the text of a treaty does
not affect its validity

3. Fraud & Corruption

Article 49 provides that if a state has been induced to conclude a treaty by the fraudulent conduct (fraud,
deception, misrepresentation) of another negotiating state, the state may invoke the fraud as invalidating
its consent to be bound by the treaty. Article 50 provides that if the expression of a State's consent to be
bound by a treaty has been procured through the corruption of its representative directly or indirectly by
another negotiating state, the State may invoke such corruption as invalidating its consent to be bound by
the treaty. NB: we distinguish between corrupt influences and mere hospitality.

VOID AB INITIO FACTORS

1. Coercion of the representative
Article 51 provides that if the consent is procured through threat or some act of violence or coercion
directed at the representative then the treaty would be void ab initio. Threats not to his person alone, but
also his family, property etc. to coerce him to sign the treaty
2. Coercion of the State itself
Article 52 provides that treaty is void if its conclusion has been procured by the threat or use of force
against the state in violation of the principles of international law embodied in the UN charter. Economic
pressure doesn’t fall within the use of force used by the UN charter.
3. Conflict with peremptory norms of international law (jus cogens)
Article 53 provides that a treaty is void if, at the time of its conclusion, it conflicts with a peremptory
norm of general international law. The convention explains jus cogens obligations as those elevated
norms recognized by the international community of states as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general international
law having the same character. This means that ordinarily a state may have a justifiable excuse for not
obeying a particular rule of international law, however, jus cogens does not allow any excuse under any
circumstance, they cannot be derogated from under any circumstance. Examples are those which we
stated in the general commentary 24 of the ICCPR. It is possible for the treaty to be concluded at a time
when it was not in violation of any peremptory norm emerges to which the treaty is in conflict with the
new peremptory norm emerges, the treaty terminates from the point at which the new peremptory norm
has emerged Article 64 however, this wont affect anything done under the treaty prior to the termination
by the emergence of the new peremptory norm.

TERMINATION, SUSPENSION or WITHDRAWAL FROM TREATIES

Article 54 provides that; a state may terminate or withdraw from a treaty if the treaty itself provides that it
is possible to do so. If this is not provided for by the treaty, then at any time by consent of all the parties
after consultation with the other contracting states, a state may withdraw from the treaty.
Article 55 provides that subsequently after a multilateral treaty has entered into force, and parties have
withdrawn from it and falls below the minimum number required for its entry into force, would not mean
that falling below that minimum number terminates the treaty. Thus, the number of parties may fall below
the minimum number required for the treaty’s entry into force but the treaty would still be valid. Unless
all parties withdraw remaining only one party, then in the case the treaty terminates because one state
can’t make a treaty with himself.
If the treaty does not provide for withdrawal or denunciation, then as a general rule a state cannot
withdraw (perpetual treaties) e.g. State parties to the ICCPR cannot withdraw from it. Unless it is
established as provided by Article 56 that the parties intended to admit the possibility of denunciation or
withdrawal or if a right of denunciation or withdrawal may be implied by the nature of the treaty

Material breach
A party may terminate a treaty because there has been a material breach by the other party or parties of
the treaty by not performing their obligations which are essential to object and purposes of the treaty.
Article 60(1) provides that if it’s a bilateral treaty and the other party is not performing his obligations
which are essential to the objects and purposes of the treaty, then the other party can terminate or suspend
the operation of the treaty. Article 60(2) provides that a material breach of a multilateral treaty by one of
the parties entitles the other parties by unanimous agreement to suspend the operation of the treaty in
whole or in part or to terminate it either in the relations between themselves and the defaulting State, or as
between all the parties. In a multilateral treaty, where there are many parties, sometimes the material
breach of the treaty may not necessarily affect every party thus it is the specially affected states who may
want to take action against the defaulting state Article 60(2)(b) provides that the specially affected state
by the breach may invoke it as a ground for suspending/ termination of the operation of the treaty as
between itself and the defaulting state. read Article 59
Supervening impossibility of performance
This normally happens where you have a subject matter that is crucial for the operation of the treaty and
that subject matter has been destroyed or disappeared. Mostly relating to physical destruction of the
subject matter. Article 61 provides that a party may invoke the impossibility of performing a treaty as a
ground for terminating or withdrawing from it if the impossibility results from the permanent
disappearance or destruction of an object indispensable for the execution of the treaty. If the impossibility
is temporary, it may be invoked only as a ground for suspending the operation of the treaty. Impossibility
of performance however may not be invoked by a party as a ground for terminating, withdrawing from or
suspending the operation of a treaty if the impossibility is the result of a breach by that party either of an
obligation under the treaty or of any other international obligation owed to any other party to the treaty.
Supervening impossibility of performance mostly deals with physical disappearance or destruction of
tangibles, an object that is destroyed or disappears etc. which is crucial to the operation of treaty whiles
with fundamental change of circumstances deals with generally with anything else which makes the
performance of obligations either onerous or impossible etc.
Fundamental change of circumstances
Article 62 provides that a fundamental change of circumstances which has occurred with regard to those
existing at the time of the conclusion of a treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless the existence of those
circumstances constituted an essential basis of the consent of the parties to be bound by the treaty; and the
effect of the change is radically to transform the extent of obligations still to be performed under the
treaty. This is more similar to frustration under contract law when a set of circumstances arise which
radically transformed the obligation to be performed and which event was not foreseeable by the parties.
Thus, if those events were foreseeable by the parties, then it would be deemed that those circumstances
were taken into account when concluding the treaty and therefore the treaty cannot be terminated or
suspended it based on the occurrence of those circumstances which was foreseen at the time the treaty
was concluded Gabcikovo-Nagymoros project case (Hungary v Slovakia), the court explained that
Hungary terminating the treaty on the basis of inter alia the increase in the cost of the project and its
reduction in its profitability would not be sufficient as a valid invocation of a fundamental change of
circumstances to warrant a termination of the treaty because those event were not unforeseeable by the
parties that the cost could rise and the profitability could reduce
The Effect of Armed conflict/ wars on Treaties
The question posed is what happens if there’s an outbreak of war between two states but there’s a treaty
between them, does the treaty terminate because there’s been an outbreak of war or armed conflict
between them? The answer cannot be a straight yes or no. It would depend on all the factors available
regarding the treaty itself, the type or nature the of treaty, when its supposed to apply, its provisions, and
other factors as well
1. Some treaties which are meant to apply during armed conflict armed conflict or which apply at
all times including during times of armed conflict. Thus, when there’s an armed conflict between
states, that would not suspend the operation or terminate the treaty because there is war.
Humanitarian law treaties for example are treaties which provide rules to regulate the conduct of
warfare. So, there are meant apply during armed conflict. So, an outbreak of armed conflict
would not be grounds to suspend such a treaty, in fact that is the time during which the treaty is
meant to apply because it’s a treaty that provides rules for armed conflict. The 1949 Geneva
conventions which regulate various aspects of the law or the rules of armed conflict during armed
conflict apply during armed conflict thus it cannot be said to be terminated when there’s an
outbreak of armed conflict between states. Human rights treaties also apply during armed
conflicts as well except that some of their provisions could be suspended. Thus, if there’s armed
 conflict, we can say there’s no more right to life so we can kill everybody including civilians.
Some may be suspended like the right to freedom of movement but otherwise most other rights
would apply like the right to life, right to be free from torture etc. would apply
2. Some treaties on the other hand by their nature may be suspended because there’s war. For
example, a treaty regarding trade or communication between a state, its possible that the treaty
may either suspended or terminated because there’s war between the states. If the treaty is a peace
treaty, as well, by its nature, an outbreak of war between state would terminate such a treaty.

2ND SEM

STATE JURISDICTION
As discussed under the Subjects of international law and particularly, statehood, once a state has satisfied
the requirements of the Montevideo convention, which are; a permanent population, a defined territory,
government and capacity to enter into relations with other states (it must be independent) for an entity to
be considered a state. Thus, when an entity is independent, what that means is that it has attained Full
Sovereignty to be able to perform all the functions of the state that international law allows.
In this respect, Sovereignty thus refers to the “the total bundle of rights, privileges, powers that a state
enjoys or exercises within its territory to the exclusion all other states.” What this means is that, within
the territories of said state, the state is supreme to the extent allowed by international. Thus, the idea of
the Sovereign equality of states so that within the borders of the state no other power or sovereign may
exercise any functions of a state within the territory of that state without its permission or consent.
The Sovereign equality of states thus means that legally or theoretically, all states are equal in the eyes of
the international law. They have the same right, powers, privileges etc. But practically, some states may
have military power, economic power etc. advantages over states making them in that area more powerful
than other states but legally in the eyes of the international law, all states are equal.
An aspect of the sovereignty of states is Jurisdiction. It can be said to be a subset of the sovereignty of
the state. What then is Jurisdiction?
Harris defines State Jurisdiction as; the power of a state under international law to govern persons and
property by its municipal law. In this sense, Jurisdiction of a state refers to the competence of a state, to
enact laws over all persons and things, property, within its territory and to enforce those laws over all
such persons, things and property within its state. It essentially deals with a state’s power to govern
persons and property within its territory by its domestic laws.
There are various forms of jurisdiction which are;
 Prescriptive Jurisdiction: which refers to the power or competence of the state to enact laws to
affect all entities within its territory. The legislative arm of government performs this function.

 Enforcement Jurisdiction: the aspect of a state’s jurisdiction which involves the enforcement of
its municipal law over all persons, things or property within its territory. This may be subdivided
into 2. These are;
i. Executive aspect of the enforcement jurisdiction dealing with steps taken to ensure that
the enacted laws are adhered to
ii. Judicial aspect of the enforcement jurisdiction dealing with the state’s competence to
determine whether or not there has been a breach of the laws it has prescribed.
Generally, enforcement only takes place within the territory of the state, however, there are exceptions
which would be looked at later.
 Civil or Criminal Jurisdiction: the civil aspect involves legal issues between private persons
which would be discussed in more details in final year under Conflict of laws. For the purposes of
this course we would be paying more attention to the criminal jurisdiction. The criminal aspect
involves legal matters to which the state is a party and the breach of the criminal laws of the state
and the prescription of punishment for such breaches.

 Exclusive or Concurrent Jurisdictions

CRIMINAL ASPECT OF A STATES JURISDICTION

We discuss in terms of its prescriptive jurisdiction and its enforcement jurisdiction. Thus, the power of
the state to enact criminal laws and also to enforce those criminal laws within its borders.
What then would be the basis for a state exercising criminal jurisdiction over any person or entity
in general?
1. The Territorial Principle: the state, exercising its sovereignty, is supreme over anything that is
situated or occurs within its territory or borders. Thus, when it comes to the state’s criminal
jurisdiction, its primarily territorial. This means that, the state has the power to exercise criminal
jurisdiction over any matter or person found within its territory. Thus, the basis for the state
asserting jurisdiction would be because it occurred within its jurisdiction. The jurisdiction of
every state is primarily territorial. This means that the state has the power to exercise criminal
jurisdiction, either to criminalize and to enforce its criminal laws over all matters that occur
within its territory which it considers to be criminal so long as it is not prohibited by some other
rules of international law to criminalize such acts. Thus, any criminal activity that occurs within a
state’s borders, said state has jurisdiction over it. The borders of a territory of a state comprises,
the land territories of the state, the airspace and its territorial waters subject to any other rules of
international law.
Where a crime occurs entirely within the jurisdiction the state has jurisdiction. Situations may arise where
the act constituting a crime may be committed partly within one state and partly within another state. In
any case, both states have jurisdiction once the act is considered a crime under its laws. Thus, territorial
jurisdiction may be subdivided into 2 principles to cater for such situations;
i. The Subjective Principle of territorial jurisdiction: where the act constituting the offence
begun in State A and was consummated in State B, State A would have jurisdiction based on the
subjective principle because the act which was considered criminal begun in State A.
ii. The objective Principle of territorial jurisdiction: where the act constituting the offence begun
in State A, and was consummated in State B, State B, would have jurisdiction based on the
objective principle because the act which was considered criminal was consummated within the
territory of State B.
In such a case where both states have jurisdiction, prima facie, the state that has custody of the offender
would be the state that would have the power to try the offenders and using its domestic laws. If the state
having custody of the offender is uninterested in the case due to certain reasons may extradite the
offenders to the other state if there is such an agreement between them.
 NB: We remember that jurisdiction is primarily territorial. The first basis on which a state would
exercise jurisdiction in criminal matters would be because the matter occurred within its territory either
wholly or partly. Now this means that for a state to extend its jurisdiction outside its territory (extra
territorial jurisdiction), it must have some valid basis under international law for doing so because
jurisdiction is primarily limited to a state’s territory so to exercise jurisdiction beyond one’s territory,
there must be some rule of international law which permits the state to do that. And this brings us to the
other basis for basis for exercising jurisdiction and in this case outsider of one’s jurisdiction

Exercise of Extra-territorial jurisdiction

2. The Nationality Principle; because nationality establishes a certain reciprocal relation between a
state and its citizen whereby the state may accord certain privileges and rights to its citizens like
travelling with one’s state’s passport, gaining assistance from embassies of one’s state in foreign
countries etc. and thus because of that relationship, the state has the right to impose certain
obligations and, in this case, criminal obligations wherever they may be in the world. One the
basis of the nationality principle, international law recognizes that because of the bond of
nationality between a state and its citizen, the state can impose certain criminal obligation on its
national which would apply wherever they may be in the world. Being outside the country would
thus not mean that a citizen is totally extricated from his national law and thus there are certain
acts the citizen may do abroad which the state may prosecute when he gets back even though the
act occurred outside the territory of the state. For example, in the USA they have the Foreign
corrupt practices act under which USA nationals who do business abroad and involve themselves
in corrupt practices are liable to be prosecuted in the US for such acts. We can also refer to
Hughes CJ in Skirides v Florida. Thus, the maxim one’s national laws follows you wherever
you go.

3. Passive Personality Principle: in some cases, a person not a national of a state (State A) and
outside of State A’s territory and commits a crime against State A’s national outside State A’s
territory, State A may exercise jurisdiction and enact and enforce laws against such a person who
is not a national and not within the territory of State A on the basis that the victim of the crime is
a national of State A and on such basis exercise criminal jurisdiction. USA v Yunis.

4. Protective Principle: there may be acts that occurred outside the territory of the state but which
may affect or constitute serious threats to the national security or other vital interests of the state
and thus may be a basis that a state may extend its laws to criminalize those acts even though they
occurred outside the territory of the state. State v Otchere, Joyce v DPP, AG of Israel v
Eichmann.

5. Universal Jurisdiction/ Universality Principle: there are certain crimes which are considered as
international crimes and which are violations of the highest rules of international law (peremptory
norms) and thus on that basis, when those crimes are committed anywhere in the world, because
they are crimes that threaten the whole of the international community, every state in the
international community has jurisdiction to try or punish the offenders, irrespective of whether
the crime was committed within their state, against their nationals or by their nationals, thus what
this means is that as far as classical universal jurisdiction is concerned, there is no need for a state
to establish any connecting factor such as nationality of the offender or the victim or the fact that
the offence was committed wholly or partly within the territory of the state. The only criteria
needed is whether the offence is one that is considered as belonging to the class of offences which
may be subject to international jurisdiction. These class of offences must be international crimes
that violates preemptory norms.
 The concept of universal jurisdiction developed at the era of piracy on the high sea. In those days
persons who engaged in piracy were considered as enemies of all mankind (Hostis humanis
generis). It was so considered because piracy was against the economic interest of the super
powers at the time and as such declared piracy as an international crime. Thus, piracy is
considered as the first ever crime recognized by international law which is subject to universal
jurisdiction and this meant that when a pirate is captured by any state, can try and punish the
pirate. In modern international law, scholars have argued that apart from piracy, there are other
crimes which can be regarded as subject to universal jurisdiction. They are however, limited to
violations of jus cogens obligations. Thus, war crimes, genocide, torture, crimes against
humanity, slavery, the crime of aggression are considered to be subject to universal jurisdiction.
AG of Israel v Eichmann, R v Bow street Metropolitan stipendiary magistrate, ex parte
Pinochet Ugarte (no. 3) per Lord Millet.
In modern times however, the exercise of universal jurisdiction does not enjoy as much support
among states as it used to do because these crimes are mostly committed by people in position of
power and as such has more political connotations to it. The Arrest Warrant case as DRC v
Belgium.
NB: The classical form of universal jurisdiction needs no link, all that is needed to be established is that,
the acts are heinous crimes which are considered to be against the whole international community which
violates peremptory norms. There are cases where treaties may criminalize certain acts and empower the
courts to exercise jurisdiction over them. The mere fact that states have ratified the treaty and almost
every state criminalizes that act and prescribes punishment to it does not make it a subject to universal
jurisdiction.

JURISDICTION OVER FOREIGN SHIPS

The jurisdiction of the state applies in its territory which includes its airspace, land territories and
territorial waters. The jurisdiction that a state enjoys as pertaining to its territorial waters are subject to
certain rules of international law. The territorial sea of a state measures or must not exceed 21-nautical
miles. Within the 12-mile limit of the territorial seal, the criminal laws of the state apply subject to certain
exceptions. Article 27 and 28 of the UN convention on the law of the sea on the exercise of criminal and
civil jurisdictions respectively in relation to foreign ships. The general rule is that although the state has
absolute criminal jurisdiction within its territory, when it comes to the territorial sea, the jurisdiction is
not absolute because other states have rights within the territorial sea which must be respected. Generally
when it comes to the enforcement of criminal law, the crimes that the state may exercise its jurisdiction
over in the territorial sea in respect of foreign ships are crimes, which have been listen in Article 27(1) of
the UN convention on the Law of the sea which are crimes (a) the consequences of the crime extend to
the coastal State; (b) if the crime is of a kind to disturb the peace of the country or the good order of the
territorial sea; (c) if the assistance of the local authorities has been requested by the master of the ship or
by a diplomatic agent or consular officer of the flag State; or (d) if such measures are necessary for the
suppression of illicit traffic in narcotic drugs or psychotropic substances.
NB: As far as warships or government ships are concerned, they are totally immune from the jurisdiction
the coastal state. The coastal state cannot exercise any jurisdiction over a warship or governmental ship of
another state. A warship is a ship belonging to a military of a state and it includes military ships.
Governmental ships are used for some other governmental purposes like belonging to a certain
department of the government used for research, communication, economic activity like oil exploration
and the like are all immune from any jurisdiction in the territorial sea. Thus, the only thing the coastal
state can do is ask the ship to leave but cannot arrest the ship or its crew members.
Beyond the territorial sea, there are other maritime zones. When a ship is on the high seas, which is
considered as a place which not subject to the jurisdiction of any state (open to all states), there are
special rules that apply. Thus, any offence that occurs on the high seas, would be subject to special rules
which have been codified in Article 97 of the UN convention on the Law of the sea which explains that
it is the flag state (the state where the ship is registered and flies the flag of the state) that has jurisdiction
over the ship and over all persons aboard the ship when it is in the high seas. Thus, anything that happens
on the ship would be within the jurisdiction of the flag state. In an event of a collision or any other
incident of navigation on the high seas which involves the criminal responsibility of crew members or the
master of the ship, it is the flag state that has jurisdiction or the state of which the offender is a national.
There used to be 2 competing theories about how states exercise jurisdiction over ships;
i. The Floating territory doctrine; explains that if we consider the ship as an extension of the
territory of the state, then we can liken it to being part of the territory of the state and thus
anything that happens on that ship would come under the jurisdiction of the state who’s flag
the ship was flying.
ii. The Nationality doctrine; explains that we ought to look at the ship as having the nationality
of the state so that based on the nationality principle, because a state may exercise jurisdiction
over its nationals when they are abroad, then in that sense also, the ship when it’s in the high
seas or any place outside the territory of the state, would be subject to the laws of the flag
state by virtue of it being a national of the flag state.
In the lotus case, the court seemed to go with the floating territory principle. The holding of the court in
the lotus case has been abolished by Article 97 of the UN convention on the Law of the sea which now
codified the flag state doctrine that the ship should be considered as the national of the state and the be
considered as such. Thus, if an incident occurs on the high seas, on board a ship, the flag state is to have
jurisdiction or the state of which the offender is a national should have jurisdiction.

JURISDICTIONAL IMMUNITITES
(limits of state jurisdiction)
There may be certain persons, properties or matters, which may be immune from the jurisdiction of the
state i.e. both in its civil and criminal jurisdictions.
There used to the doctrine of Absolute immunity which states that when it comes to exercise of
jurisdiction by states, a state could not assume jurisdiction over another state in any circumstance. Thus, a
state exercise jurisdiction over all matters within its territory, but if the matter involved another state, then
its jurisdiction was completely ousted. This was based on the principle of Par in parem no habet
imperium which translates as an equal cannot sit in judgement of an equal or a sovereign cannot exercise
jurisdiction over another sovereign because of the sovereign equality of states. So that if the matter
involved a state, the municipal court could not exercise jurisdiction over it. Schooner Exchange v
McFaddon. Any matter involving a foreign state would not be cognizable by the court of another state.
This doctrine had flaws because over time, states begun engaging in private activities like trade,
commerce, contracts, loans, etc. and thus increasingly, states were not only engaging in functions
considered as public functions but also in private transactions and therefore because of this, the rules of
international law has now moved from Absolute immunity to the doctrine of Restrictive immunity.
The adoption of the doctrine of Restrictive immunity involves the separation of what are purely public/
sovereign acts from what are private/ commercial acts. Therefore, now, if a matter involves a state, the
courts would not be ousted merely because it involves a state but rather the court assesses the transaction
to determine whether it involves a purely public act or is a private/ commercial act. Thus, immunity is
given only to acts considered as purely public/ sovereign acts. If the matter is a matter considered as
purely private, then no immunity is given for such
i. Acta jure imperii: these are those acts which the states does in its sovereign capacity as
public acts for which it enjoys immunity thereof form the courts of other states. Holland v
Lampen-Wolf per Lord Millet
ii. Acta jure gestionis: there are those acts which does in its private capacity in commercial
relations and thus enjoys no immunity thereof. Here the state acts just like any private person
and not in its capacity as a state and therefore can be sued before municipal courts for its
default. Trendtex corp v Central Bank of Nigeria, I Congresso del Partido
UK State immunity Act 1978, Draft UN Convention on Jurisdictional immunities of States and their
properties 2004.
NB: Diplomats are also immune from the jurisdiction of local courts in criminal action and some civil
actions The Vienna convention on the law of diplomatic relations 1961.

Jurisdictional immunities in Criminal cases

In criminal cases, the state cannot exercise jurisdiction over all persons, even if they are found in within
its territory or committed the offence within its territory. These persons include;
1. Heads of state, head of government, foreign ministers’ immunity; these are immune from
prosecution in the courts of other states.
2. Diplomatic immunity: these also enjoys the same immunity.
The immunity however is not absolute depending on when the person is power or not. For this category of
persons, if the person is still holding office, then he enjoys absolute procedural immunity i.e. it is
immunity totally from the crime, they cannot be prosecuted whilst the remain in office but that doesn’t
mean they are absolved from the crime. They enjoy whilst in office Immunity ratione persona which
means they have personal immunity. It matters not that what he is doing is an official or private action,
they cannot be prosecuted whilst in office, unless his state waives the immunity. The immunity attaches
to his person so long as he remains in office. The purpose of the immunity is to ensure that the person is
able to perform his functions without interferences and intimidation.
NB: In The Arrest Warrant case as between DRC v Belgium, the ICJ explained that before national
courts, foreign ministers, heads of state, head of government enjoy procedural immunity until the leave
office, but before international courts like the ICC, which the Rome Statue, clearly states that there is no
immunity for any person by reason of their status, such persons cannot enjoy such immunities before and
international court.
Upon the person leaving office, there is no more personal immunity. There is only immunity covering
acts which he did in his official capacity. i.e. he cannot be prosecuted for acts he did in his official
capacity. He can however be prosecuted for things he did in his personal capacity. Thus, upon leaving
office, he enjoys only Immunity ratione materiae because prosecuting him for acts he did in his official
capacity after his leaving office would be indirectly attacking the immunity the state itself enjoys because
the immunity officials enjoy are extensions of the immunity itself because they act as officers of the state.
NB: official acts do not extend to commission of international crimes or violations of rules of
international law especially peremptory norms obligations. R v Bow street Metropolitan stipendiary
magistrate, ex parte Pinochet Ugarte (no. 3).
NB: also, we note that we are looking at immunity before foreign courts which clearly means that they are
not necessarily immune before their own national courts. Unless some constitutional provision states so
like what Article 57 (5)(6) of the 1992 constitution.

STATE RESPONSIBILITY
This principally deals with how to establish the liability of the state for wrongful acts under international
law. It is broken into 2. These are;
a. Substantive aspects; contains certain substantive legal obligations that are imposed on states and
which they must comply with, failure of which would entail certain consequences.
b. Procedural aspects: concerns the rules or tests by which one proves the liability of a state and
what consequences should flow from such proof of liability.

 THE SUBSTANTIVE ASPECT/ PRIMARY OBLIGATION

THE TREATMENT OF ALIENS/ FOREIGN NATIONALS
The permanent population aspect of a state does not comprise of only it owns nationals. It comprises also
of foreign nationals who have taken up residence in that state for various reasons such as education,
marriage, business etc. within its borders.
The question that arises then is what kind of treatment should the state extend to those foreign nationals
living within its territory. Are there any standards of how these foreign nationals should be treated?
Under international law, there have been mainly 2 competing theories which have informed how states
should conduct themselves in relation to foreign nationals living within their territory. These 2 theories
have come from 2 angles. From point of view of the developing states and the point of view of developed
states.
1. The National treatment standard; which the developing countries have stood by, posits that a
foreign national should be afforded the same standard of treatment that the nationals of the state
are given. That is, a foreign national should not expect any preferential treatment but they would
be accorded the same treatment that nationals of that state area accorded. So whatever rights or
entitlements that the nationals have, those are the same rights or entitlements the foreign national
would enjoy.
2. International Minimum standard: posits that as opposed to the national treatment standard,
when there are foreign nationals in a state, they are supposed to be accorded a certain treatment
which is at the barest minimum, according to an international minimum standard regardless of
how the state treats its own nationals. The developed states have espoused this theory. The
problem with this theory is that, apart from the area of property where a state would have to
compensate an alien if the state is to interfere with its property, there is no complete principle
which define the exact content of this international minimum standard. There is no proper
understanding of what giving someone an international minimum standard means.
Thus, when it comes to this are of the law, depending on the orientation of the arbitrator or judge on
which standard he ascribes to would give judgment in light of these standards. In 1850, Lord Pamelson
criticized the national treatment that going strictly by this standard, means that whatever accord that a
state does to it nationals, every other person within the territory should be subjected to that, though some
of those things could be so outrageous that no reasonable person would consider that a person be
accorded those standards. There has thus always been that tension between that two standards. In 1957,
the international law commission, decided to study the subject of state responsibility and appointed a
special rapporteur (F. Garcia Amador) to provide the rules of international law governing state
responsibility who tried to reconcile the 2 theories into 1 by saying that if there are foreign nationals in a
state, the state should accord them the same civil rights and guarantees that the state accords its nationals.
However, those civil rights and guarantee should not be less than fundamental human rights recognized
by international instruments. This proposal however, was eventually abandoned because at the time, there
wasn’t any binding international instrument and the commission rather focused on codifying the rules of
state responsibility on the procedural aspects instead of proving what should be the substantive or primary
aspect on the liability of the state.

THE ADMISSION and EXPULSION OF FOREIGN NATIONALS

Jurisdiction is part of the sovereignty of a state and the sovereignty of the state refers to the bundle of
rights, privileges, powers etc. that a state exercises over its territory to the exclusion of all other states. An
aspect of this sovereignty of state is the right or power of the state to determine who comes within its
territory and who leaves the territory.
 Admission of Foreign Nationals
The right to determine to determine to who enters the territory is almost an absolute right. So, unless the
state itself has balm itself to certain treaty obligation which limits its right to determine who comes in, the
state has absolute discretion to determine who comes in. That’s the reason why to be able to travel to a
state, you must get the permission of the state to enter in the form of a visa you’d have to obtain without
which one cannot enter into the state because the state has the right to determine who comes within its
territory and this right is established under international law. The Report on the admission to Louisiana
thus said that although the law that had been passed by Louisiana to prevent entry of black people from
entry into Louisiana was shameful and all, there would be no basis international law for the UK
government to require that the legislation to be repealed because every independent state has the right to
determine who comes into its territory unless the state has fettered that discretion by some treaty
obligation, the state has the absolute right to determine who comes into the territory of the state. AG of
Canada v The King.
 Expulsion of Foreign Nationals
Whereas the state has absolute discretion to determine who comes in, when it comes to expelling foreign
nationals, there are certain limitation which are imposed by international law. Otherwise the state can
expel any foreign national that it considers to be opposed to its peace, good government or social or
material interest. So, the state can determine who comes in, but after you come in, the state cannot just
arbitrarily expel you, it has to comply with certain requirements in doing so. A state may expel an alien
whenever it wishes, provided it does not carry out the expulsion in an arbitrary manner. Expulsion is
arbitrary when; Dr Breger’s case
a. Unnecessary forces is used to effect the expulsion
b. Mistreating the alien in the course of the expulsion
c. Refusing to allow the alien reasonable time to safeguard his property or wind up his affairs
Thus, so long as the state has not acted in this manner but has acted reasonably, then the expulsion would
be valid. Dr Breger’s case is contrasted with the Yeager v Iran. In the former, Dr. Breger was given
6months to wind up his business and leave and therefore reasonable time was given and the expulsion
valid. In the latter, Yeager was given 30minutes without any prior notice to leave the country to which the
tribunal held that Iran had acted contrary to international law because a state must give the foreigner to be
expelled sufficient time to wind his affairs.
However, expulsion may be justified if (though the state would have to act reasonably and treat the alien
in a humane manner); Rankin v Iran
a. The alien entered the state illegally
b. The alien breaches the conditions of his admission
c. The alien involved himself in criminal activities
d. The presence of the alien is a threat to national security
Look at The international law commission draft articles on the expulsion of aliens 2014 which gave
certain guidelines on how an alien should be expelled in Harris. Some are a reflection of customary law
and others are a reflection of progressive development on what the law should be.
NB: as far as refugees are concerned, special rules apply. A refugee is a person is a person who for a
genuine fear of his life has fled his own country and crossed an international boundary to seek refuge in
another state. Looking generally at refugee law, there is the Doctrine of Non- refoulment which states
that if there’s a refugee in your country whether he entered legally or illegally, you cannot return that
person to the place where he is fleeing from. So, if a refugee enters your territory, legally or illegally and
you are not interested in accepting him or her there, you can send him to a state willing to accept him, but
cannot return the refugee to the place where his life would be in danger.
Indirect Expulsion
A state may through indirect acts, expel an alien from its territory Rankin v Iran. The state may create
certain circumstances in the state making the stay of the alien in that state very difficult or impossible. to
make the sate liable, the alien must prove that the government of the state was behind the situation
directly or indirectly. In Rankin v Iran, the claimant failed because he failed to prove that his decision to
leave was due to specific act or omissions attributable to Iran.

EXPROPRIATION OF THE PROPERTIES OF FOREIGN NATIONALS

The state has jurisdiction over all property within its territory whether they are private or not. So, in some
cases, the state may be entitled to interfere with private property for various reasons. What that means it
that, at its core, a state has the right to take the property of a private person, whether its national or an
alien, to compulsorily acquire it for certain purposes. That right of the state to take over private property
is recognized under international law as Expropriation. Expropriation may be known by different names
under municipal law so for example in Ghana, in Article 20 of the 1992 constitution, the government has
the right to take over private property for certain public purposes and that is called compulsory
acquisition. It is called the power of eminent domain. But under international law, it is called
expropriation. Generally, every state has the right to expropriate private property because it is an attribute
of sovereignty because the state has jurisdiction over all things within its territory including property
within its territory. There are ways to expropriate that would be legal and there are ways that would make
expropriation illegal. So long as a state follows the rules and takes over private property whether
belonging to its national or an alien, it would be entitled to do so. But if the state doesn’t follow the rules,
then that would result in various legal consequences for the state.
There’s a related term known as Nationalization which is a specie of expropriation. Expropriation takes
place when a state compulsorily acquires a private property either by transferring the title of the property
to itself or by taking physical possession of the property. Nationalization happens when the state
compulsorily acquires property or enterprises in a whole industry or sector of the economy as a way for
economic reform or as a tool or economic policy. In some cases, you may have a particular sector of the
economy that is dominated by foreign enterprises for example oil, mining etc. then, as an economic or
social policy reform, the state may want to get control of that sector so what some states would do is to
nationalize that sector example happened after the Iranian revolution where the Iranian state nationalized
almost all the oil companies in the state as an economic reform policy. Nationalization is thus a form of
expropriation on a large scale. For the definition of expropriation, nationalization etc., we look at Amoco
international finance corporation v Iran

HOW A STATE MAY LAWFULLY EXPROPRIATE THE PROPERTY OF AN ALIEN

For expropriation to be lawful, a state must fulfil 3 requirements; Amoco Int. Finance Corp v Iran
1. The property must be taken for a public purpose: In most cases, the state may make the
argument that it is for a public purpose either for security reasons, economic reasons, for an
economic policy etc.
2. The taking of the property must not be done in a discriminatory manner: the taken of the
property must not be some sort of a targeted act where certain people are singled out and their
property taken on grounds which are prohibited like the race of the person, religion, nationality
etc. It must be non-discriminatory. This ground is also a ground that in most cases would be hard
to prove in the absence of cogent evidence.
3. It must pay compensation for the taking of the property: This is seen as the most decisive
factor because the state can almost always get away with the first 2 points. This is decisive
because if the state has taken the property and has not paid compensation that is clear since its
either you have paid or not paid.
If a state complies with all these requirements especially with the payment of compensation then the
expropriation is lawful.
When it comes to the payment of compensation, there are 2 main view points which divides the
developed world and the developing world;
1. The Hall formula: developed by a US secretary of state, posits that when the property is taken
by the government, there must be the payment of prompt, adequate and effective compensation.
this formula is espoused by the developed countries.
a. It must be Prompt: means that as soon as the property is taken, compensation must be paid
immediately, not years later when the value money would have depreciated etc.
b. It must be Adequate: which means that the compensation paid must be equivalent to the
value of the property taken at the time it was taken. If there’s dispute about the value of the
property, then it must be determined by what price would be available on the market for the
property if there was deal between parties at arm’s length.
c. It must be Effective: which means that the payment must be done in a manner that allows the
person to enjoy the compensation. For example, where the compensation is paid into a bank
account in Ghana when the person has been already been deported to South Africa, and he
cannot probably access account, then that would not be an effective compensation. Or the
value of the property is saying $500,000, to which compensation is to be paid, instead of
paying the dollar in a stable currency, the compensation paid in an inflationary currency so
that he cannot really have any effective use of the money, that would not be an effective
compensation.
2. The theory of appropriate compensation: this theory as advocated by developing countries,
posits that the compensation that is paid must not necessarily be equivalent to the value of the
 property. They must just give something that is fair and just but not necessarily that is equivalent
to the value of the property.

WHAT CONSTITUTES UNLAWFUL EXPROPRIATION

1. Unlawful expropriation would occur if the state does not comply with the stated requirement
especially with the payment of compensation. Thus, non-compliance with the aforementioned
requirements would constitute an unlawful expropriation.
2. When there has been indirect, creeping, constructive or disguised expropriation: Direct
expropriation is what we discussed before where the state formally passes an executive
instrument or law, to transfer title of the property to itself or the state takes physical possession of
the property and that takin is acknowledged. There are instances in which the state would engage
in conducts by which it does not acknowledge that it has taken over a property belonging to a
person, but the owner of the property is denied of the beneficial ownership in the property. So,
the owner may still have the paper title to the property but for all intends and purposes, it belongs
to the state and the owner cannot use it because of the conduct the state has engaged in and this is
what is termed as indirect, creeping, constructive or disguised expropriation. And such
expropriation is unlawful and prohibited under international law Starrett housing corp v Iran.
Where a state engages in conducts, that renders the property rights so useless that the owner of
the property only holds the paper title but cannot exercise any ownership rights over the property,
the there’s indirect expropriation and this expropriation is unlawful per se. The claimant doesn’t
have to show that the expropriation has benefited the state in any way so long so as his property
rights has been rendered useless and he cannot assert any ownership control over the property,
then the property would be deemed to have been expropriated. Look at the 1961 Harvard draft
convention, the explanatory note to article 10 of the convention.

CONSEQUENCES OF UNLAWFUL EXPROPRIATION

If a state engages in unlawful expropriation, it breaches its international obligation to that foreign investor
or alien and so it entails consequences to make repatriations. It must either make restitution i.e. restore
the property to the owner. If restitution is impossible, it must pay damages. We distinguish the payment
of damages and the payment of compensation for lawful expropriation. The latter is that, the value of the
property that is lawfully taken is accessed and compensation is paid to the person. The former is that the
property is unlawfully taken, it is illegal and so the state must make restitution by restoring the property to
its owner or if the property has been used or destroyed then the state must pay damages. Damages here
means payment of compensation plus loss of profit. Money which would cover the value of the property
and also pay additional compensation for the loss of the use of the property until the time of the payment.
Amoco int. finance corp v Iran

The question posed is if the foreign national is in the territory of a state and has been mistreated (his
property taken without compensation, manhandled etc.) what can that person do about it? This brings us
to the discussion on diplomatic protection.
DIPLOMATIC PROTECTION
The international law commission in 2006 adopted its draft articles on diplomatic protection (read in
Harris). There, it defines diplomatic protection as, “consists of the invocation by a state through
diplomatic action, or other means of peaceful means of settlement of the responsibility of another state
for an injury caused by an internationally wrongful act of that state to a natural or legal person that is a
national of the former state, with the view to the implementation of such responsibility.” This essentially
means, where a state (State A) whose victim has suffered has suffered an injury in another state (State B),
has a remedy available to him to make representation to his state for his state to invoke diplomatic
protection i.e. State A, invoking the responsibility of State B for the wrongful conduct that it has done to
State A’s national through diplomatic means or other means of peaceful settlement. For example,
summoning the ambassador to explain why the wrongful act was done with the view of negotiating a
peaceful settlement of the matter or if that fails, they can agree to submit to an arbitration for the matter to
be settled or if they are both parties to a treaty which allows for judicial settlement they can take the
matter to a court. Essentially, diplomatic protection in this sense means that is the state that is acting on
behalf of its national to ensure that the injury that has been caused to its national by the other state is
redressed. Commentary to article 1 of the draft articles on diplomatic protection.
There 3 important rules worthy to note as far as diplomatic protection is concerned; diplomatic protection
is governed by certain principles;
1. Nationality of claims: Ian Brownlie defines the rule on the nationality of claims as “from the
time of the occurrence of the injury, until the making of the award, the claim must continuously
and without interruption have belonged to the person or series of persons (a) having the
nationality of the state by whom it is put forward and (b) not having the nationality of the state
against whom it is put forward.” This means that for State A to be able to invoke diplomatic
protection against State B, the person in respect of whom State A is invoking diplomatic
protection must be continuously be a national of State A until the resolution of the matter. From
the time diplomatic protection is invoked until the time of the final settlement of the matter, the
person must continuously be a national of State A. If the person ceases to be a national, then State
A has no capacity to continue with the diplomatic protection because you can bring diplomatic
protection on behalf of your national. So, if the person is not your national then there is no basis
to invoke diplomatic protection. The person must not also be a national of the State against whom
the diplomatic protection is invoked.
2. Injury to the state doctrine: when the state invokes diplomatic protection, although for all
practical purposes, it is doing so on behalf of its national, the legal fiction is that, the state is
doing so in its own capacity i.e. even though the it’s the national that complains, when the state
infact takes upon itself to make those diplomatic representations, it is deemed to be doing so in its
own right, so from the point it invokes diplomatic protection, the claim belongs to the state, and
not to the individual, the state makes the claim in its own right. This has some implications. The
implications are that, the state can manage the claim in anyway it deems fit. It can decide to
pursue the claim to its logical conclusion, it can decide to terminate it, when an award is finally
made or a settlement is reached and it receives compensation, the state decides what to do with
the compensation. It thus can decide to give the compensation to the individual or can decide to
reject the compensation because it is doing so in its own sovereign right. The rational behind this
is that, in making the diplomatic protection, the state is not only looking at the single injured
individual citizen, it rather looking at its broad foreign policy in general, so that if the insistence
on the vindication of the right of a single person would probably jeopardize the greater
relationship between the 2 states, then it may reject or terminate the diplomatic protection in
favor of the greater interest.
The draft articles on diplomatic protection, the international law commission considers that the injury to
the state doctrine can be harsh in some circumstance because the state even if it gets settlements or
compensation may decide what to do with it. So, the commission has in its commentary to the draft
articles to diplomatic protection suggested that as much as possible, the state must take into account the
interest of the individual on whose behalf it making the diplomatic protection and not do things in manner
that would injure the interest of the said individual. The law is that the state can do whatever it wants with
the manner in which it handles the protection, the compensation etc. however, the commission is trying to
recommend a change in approach which been echoed by the ICJ in the Diallo case between Guinea v
DRC.
3. There must be exhaustion of local remedies: the state making the diplomatic protection, can
only do so if the citizen who has been injured in the territory of the injuring state, has exhausted
all local remedies in the injuring state. The reason for this is that the state in which the injury was
suffered must be given the opportunity to redress the wrong before the state is called before any
international procedure. This is because the state is sovereign, thus whatever happens within its
territory, it must be at least be respected enough to afford it the opportunity to remedy the
situation and if it does not do so, then you can now invoke international procedures. But you
cannot invoke international procedures without first exhausting the local remedies in the state.
This means that if there’s the opportunity to bring the matter before a local court for redress, you
must have done so, and exhausted the appeals (up to the highest court). NB: local remedies are
limited to legal remedies and not necessarily administrative or political settlement i.e. procedures
that can give rise to a binding decision and not any administrative or political decision which has
no legal effect. NB: the local remedies rule is not an absolute rule because in some cases, the
local remedies do not even exist or are even unduly prolonged or because of the nationality of the
injured person, they are not entitled to access the courts or there are ouster clauses in legislations
that prevent certain matter from being litigated in the courts, or the person has been expelled from
the country and cannot therefore return to make use of their local remedies and as such in these
cases local remedies do not exist and so diplomatic protection may eb engaged without
resourcing to local remedies. So, if they do not exist or are unduly prolonged either because of the
procedures which are such that many years would elapse before the case is completed, then in
such cases, then local remedies may dispensed with.
Diplomatic protection is recent days is not very common. Its rarity today is due to mainly two factors.
These are; firstly, there is a lot of human rights regimes available. We have various regional human
rights and international rights mechanisms e.g. in Africa we have the Africa human rights system to
which almost all African countries are parties to the African charter, and as such if its an issue of human
rights abuse in any country, you can exhaust the local remedies and go to the African commission for
instance. This means that an individual does not rely need to rely on his state to redress or take those
actions on his behalf if it has to do with human rights abuse etc. the individual by himself can pursue his
own legal remedies by going to an international human rights court etc.
Secondly, there’s a lot of Bilateral Investment Treaties which establish investment relationship
between various countries. These BIT’s lay down procedures for dispute settlement in case of a dispute
between the investor and the host state. And some of these BIT’S are even dispensed without the
exhaustion of local remedies. Normally, they go for arbitration without exhausting local remedies. This
also means that when it comes to matters relating to business, property, etc., a lot of the investors can by
themselves afford to take it up by themselves resort to arbitration and have the matter settled without
involving their national states. These 2 matters make diplomatic protection rare.

NB: States have various substantive obligations, either on the treatment of aliens or property or regarding
human rights obligations, or the area of the law of the sea etc., if a state doesn’t comply with these
requirements or there’s an allegation that state the state has not complied with any of these obligations or
requirements, then it must be established why one says that the state is responsible for a particular
liability or violation of international law. The law on state responsibility in this aspect is contained in the
International law commission draft articles on the responsibility of states for internationally wrongful
acts 2001.
Some authors like Ian Brownlie, discuss fault or culpability as to whether in trying to hold the state liable
for internationally wrongful acts, you need to establish whether the state is at fault or the act was done
intentionally etc. In the draft articles, the commission did not address the point head on because, the
matter of fault, intention etc., firstly, the commission considered that those matters are dealt with under
the substantive legal obligation of the state. Thus as to whether in proving the liability of the state for a
particular wrongful act, it need to be proved whether it was done intentionally, negligently or recklessly,
that would depend on the primary obligation which is same as the substantive legal obligation binding
on the state which it is alleged that the state has not complied with (i.e. either the treatment of aliens, the
law of the sea etc.). Thus if the primary obligations require that an intention or negligence be proved
before a state would be liable for something, then in that particular instance that would what would have
to be proved. Thus as to whether to prove intention, fault etc., before a state would be liable for an
internationally wrongful act, depends on the content of the primary obligation whether the primary
obligation requires such element to be proved. Secondly, under domestic law, it is normally differentiated
between civil acts and criminal acts, however, under the law of state responsibility, there is no distinction
between criminal acts and civil acts and thus, the draft articles uses the expression wrongful act, which is
a term that covers the liability of the state because there is no distinction under international law between
civil and criminal act and besides a state cannot be criminally liable for a criminal offence. It is
individuals who are held liable for criminal offences and thus a distinction as such would be pointless and
irrelevant as far the law on state responsibility is concerned. All that is concerned is whether there is a
certain obligation is binding on the state and if the state has breached that obligation. Thus after
mentioning these preliminary points, lets zoom into the substantive discussion.

 PROCEDURAL ASPECT OF STATE RESPONSIBILITY

How does one prove that a state has responsibility or liability for any act or omission?
There are 2 elements that must be proved in saying that a state is liable for an act or omission Article 2 of
the Draft Articles. These are;
1. It must be proved that the alleged conduct (an act or omission) is attributable to the state (i.e.
attribution or imputability)
2. Must be proved that the conduct attributed to the state breaches the international obligations of
the state.
It is when one proves these elements (the claimant must prove both), that the liability of the state for the
conduct is established. If these elements are proved, then it prima facie means that the state is liable and
thus a consequence flows from that. Thus the consequence which of proving the 2 elements gives rise to
an additional obligation which is the Responsibility and thus must make reparation to remedy the injury
that has been occasioned which may take the form of restitution, compensation or satisfaction.
a. ATTRIBUTION
How do you prove that a conduct is attributable to a state? There are various heads/basis of
attribution. These are;
1. Where the conduct is engaged in by the conduct of the state: Because the state is not a human
being, there are certain rules to go by. Of course, the state under international law is represented
by the government. The government is the body that acts on behalf of the state and thus when
determining whether a particular conduct is attributable to the state, it means therefore that the
starting point would be to find out whether that action was done by the government. If it was
done by the government, then its an act of the state because the government acts on behalf of the
state Article 4 of the draft Articles. The government comprises all the arms of government and in
 federal government, all levels of government. This means that any of the arms of government can
entail the responsibility of the state because of the doctrine of the unity of the state. The state is
seen as one person. International law doesn’t see the subdivision in government but sees the state
as one.
2. Article 6 of the Draft Articles provides for situations where a state (State A) places it organ at the
disposal of another state (State B) to perform functions for the latter state (State B). In this
situation, where that state organ exercises in a conduct which is contrary to the international
obligation of the latter state (State B), then that conduct would be attributed to the latter state
(State B) and not the former (State A) from whence that organ hails because it is performing
governmental functions for the state to which it has been disposed (State B).
3. Article 7 deals with excess of authority. It deals with the situation where an organ of the state has
acted ultra-vires. What the rules states is that, it would not be an excuse for a state to avoid
international liability by merely saying the organ acted ultra-vires. So even if the organ or official
did the wrongful act because he was not acting in accordance with instruction or abusing his
power, the state would still be liable for that because the official or organ was purporting to be
acting on behalf of the state The Caire case as between Mexico v France. Thus if the person is
acting in his public authority and in the process goes overboard or ultra-vires, the state would still
be liable but if he was not purporting to act on public authority to begin with, though a public
official, but that would not necessarily entail the responsibility of the state.
This means that as a general rule, the state isn’t liable for acts of private persons. However, the actions of
private persons can only become an act of the state or be reputable to the state under certain prescribed
circumstances.
Instances under which private persons would become acts of the state and for which the state would
be liable
4. Article 5 provides for instances where private individuals may be given certain public functions
to perform. Thus ordinarily, they are private persons, but being empowered to exercise elements
of governmental authority. If they have been empowered to exercise elements of governmental
authority and were acting on that authority and in the cause of that engaged in a conduct which
amounts to a violation of the state international obligations, that conduct would be attributable to
the state. If the state has outsourced that a public function to a private entity and the employees of
the private entity engage in acts amounting to violations of the states international obligations,
although those acts was engaged in by private persons, the state would be liable because it has
entrusted said public function into the private entity. In some cases also, we may have state
owned corporations who are autonomous or shared custody between private persons and the state,
the actions or private actions of those entities may also come under this if they have been
empowered to exercise elements of governmental authorities. Thus although generally, private
actions of private persons are not attributable to the state, if they have been empowered to
exercise element of governmental authority then those actions may be attributable to the state.
5. Effective control: Article 8 provides for instances where the private person may not be
empowered to exercise elements of governmental authority, but the private person is acting under
the direction or instruction of the state, then the actions of the private person may be attributable
to the state. E.g. a state sending mercenaries into another state to cause issues. However, the
control or direction test has quite a high threshold. In The Nicaragua case the court explained
that, merely giving support either financial or other assistance to a private entity does not amount
to control or direction. So the control must rise to the level of being involved in the planning and
execution of the act which has been alleged to be attributed to the state.
6. Article 9 provides for situations where there is a general breakdown of law and order and as such
the people who are normally in charge of the country are nowhere to be found and as such private
persons take it upon themselves to ensure law and order in the state. In such circumstances,
 actions these private persons engage in may be attributable to the state even though such action
are that of private persons because they are exercising the normal governmental functions that the
proper authorities would have been exercising had it not been for the break down.
7. Conduct of an insurrectional or other movement: Article 10 deals normally with rebel groups
fighting with the government, with the aim of capturing power. Though private persons, these
rebel groups in the course of the rebel activities which are unlawful under international law, the
government cannot take responsibility or attributed to the state at this point because the
government itself is after them. However, if this rebel group advances and captures power,
because they have captured power, they become the government and as such, acts they did whilst
rebels becomes attributable to the state i.e. acts, they did previously when not in power, become
attributable to the state on their capture and ascension into authority because they become the
government. If they however do not capture power from the government but stay in the part of
the state where the exercise power and subsequently break away from the state to form a new
state, the new state becomes responsible for those actions.
8. Conduct acknowledged and adopted by a State as its own: Article 11 situations undertaken by
private persons which the State acknowledges and adopts as its own. In such a situation, the
conduct of private persons may attributable to the state since the state acknowledges or endorses
or by its conduct adopts such conducts as it own The US diplomatic and consular staff in
Tehran case (the hostages case).
9. Due Diligence obligation: The duty to exercise due diligence comes into play here. This duty
posits that the state is under a duty to ensure that whatever happens within its territory whether
private or public does not cause injury to other international legal persons. Thus a state has a duty
firstly to prevent a wrongful act from being done in its territory that goes contrary to the rights of
other personalities of international law. Secondly, even if it could not anticipate that wrongful act
and the conduct happens, it must take measures to investigate arrest and punish those persons.
And thirdly to offer appropriate reparation or compensation to injured persons for those acts that
occurred. Thus if a state with all its intelligence is not able to anticipate that said wrongful act
would happen, and does nothing about it to remedy the wrong occurred or to offer any reparations
or compensations to injured persons, then under international law, the state may be liable for
those acts although they may be done by private person because it has failed to exercise due
diligence.

b. BREACH OF INTERNATIONAL OBLIGATION

After proving that an act is attributable to the state, it must then be proved that the act is a breach of the
international obligation of the state.
Article 12 deals with that point that a conduct that is attributable to the state, would be deemed to be a
breach of the state’s obligations if the conduct is not in conformity with the obligations of that state under
international law. The article further adds that, it matters not the character or origin of the obligation. The
international obligations of states are derived from different origins. It may be of customary law origin or
by treaty obligations (bilateral or multilateral) or an obligation the state owes to the entire international
community (erga ominis obligations). Whatever obligation it is, it must be established that, the conduct of
the state is not in conformity with that particular obligation to establish the breach.
Article 13 codifies the doctrine of inter-temporal law i.e. when a court or tribunal is establishing the
liability of a state for an act, it must do so in reference to the rules of international law, which were
binding on the state at the time the alleged act complained about occurred and not the prevailing rules
Judge Huber in Island of Palma case. The exception to this rule is that if the violation is continuing even
until the time new rules of international law emerge to prohibit that act and require the state to remedy
that situation, then because it is continuing, the new rules assumed can be applied.
Circumstances precluding wrongfulness (Defences against a claim of liability)
Chapter 5 of the Draft Articles deal with defences against an action of breach of international obligations
by a state. The six circumstances are: consent, self-defence, countermeasures, force majeure, distress and
necessity.
1. Consent: Article 20 provides that valid consent by a State to the commission of a given act by
another State precludes the wrongfulness of that act in relation to the former State to the extent
that the act remains within the limits of that consent
2. Self-defense: Article 21 provides that the wrongfulness of an act of a State is precluded if the act
constitutes a lawful measure of self-defence taken in conformity with the Charter of the United
Nations
3. Countermeasures: Article 22 provides that the wrongfulness of an act of a State not in
conformity with an international obligation towards another State is precluded if and to the extent
that the act constitutes a countermeasure taken against the latter State in accordance with chapter
II of Part Three
4. Force majeure: Article 23 provides that the wrongfulness of an act of a State not in conformity
with an international obligation of that State is precluded if the act is due to force majeure, that is
the occurrence of an irresistible force or of an unforeseen event, beyond the control of the State,
making it materially impossible in the circumstances to perform the obligation.
This however does not apply where (a) the situation of force majeure is due, either alone or in
combination with other factors, to the conduct of the State invoking it or (b) the State has assumed the
risk of that situation occurring
5. Distress: Article 24 provides that the wrongfulness of an act of a State not in conformity with an
international obligation of that State is precluded if the author of the act in question has other
reasonable way, in a situation of distress, of saving the author’s life or the lives of other persons
entrusted to the author’s care.
This however doesn’t apply where (a) the situation of distress is due, either alone or in combination with
other factors, to the conduct of the State invoking it; or (b) the act in question is likely to create a
comparable or greater peril
6. Necessity: Article 25 provides that necessity may not be invoked by a State as a ground for
precluding the wrongfulness of an act not in conformity with an international obligation of that
State unless the act: (a) is the only way for the State to safeguard an essential interest against a
grave and imminent peril; and (b) does not seriously impair an essential interest of the State or
States towards which the obligation exists, or of the international community as a whole.
However, in any case, necessity may not be invoked by a State as a ground for precluding wrongfulness
if: (a) the international obligation in question excludes the possibility of invoking necessity; or (b) the
State has contributed to the situation of necessity
Article 26 makes it clear that none of these circumstances can be relied on if to do so would conflict with
a peremptory norm of general international law.
NB: What happens after it has been established that a conduct is attributed to a state and that conduct
constitutes a breach of the state’s international obligations? what consequences flow from the stablishing
of breach? This brings us to the next topic
Consequences of the Breach of International obligations
When it is alleged that a state has breached a particular international obligation, we refer to the breach of
a primary or substantive obligation (treatment of aliens, law of the sea, diplomatic relations, use of force
etc.) and not secondary rules. Thus after attribution has been established and also proved that the state has
breached certain primary obligations, certain consequences arise i.e. the responsibility to make
reparations.
The responsibility to make reparations is an additional obligation that arise i.e. the obligation to make
reparation. This obligation is an additional obligation in the sense that, it does not absolve the state of its
primary obligation. Thus the duty to make reparations is not excuse to continue violating the primary
obligation imposed on the state. Article 29 thus provides that the legal consequences of an internationally
wrongful act under this Part do not affect the continued duty of the responsible State to perform the
obligation breached. Thus reparations must be made, however, the primary obligations must still be
fulfilled. Article 30 further adds that the State responsible for the internationally wrongful act is under an
obligation: (a) to cease that act, if it is continuing; (b) to offer appropriate assurances and guarantees of
non-repetition, if circumstances so require. Thus, because the state is still bound by the primary
obligation, an only acquired an additional obligation, the state must cease the violation if it is continuing,
and then offer assurances of non-repetition if the circumstances so require. So the state must do this, then
we can talk about reparation.

REPARATION
Article 31 provides that the responsible State is under an obligation to make full reparation for the injury
caused by the internationally wrongful act. Injury includes any damage, whether material or moral,
caused by the internationally wrongful act of a State. The injury caused may be material or moral.
Material damage are those injuries that are tangible e.g. destruction or seizure of a property, things whose
value can be accessed. Moral damage are those injuries are things not tangible and for whose values
cannot be financially accessed.
Forms of Reparation
Article 34 provides that full reparation for the injury caused by the internationally wrongful act shall take
the form of restitution, compensation and satisfaction, either singly or in combination, in accordance
with the provisions of this chapter. Depending on the circumstances, a state may be required to make a
particular form of reparation or all the 3 forms of reparation.
a. Restitution:
Article 35 provides that a State responsible for an internationally wrongful act is under an obligation to
make restitution, i.e., to re-establish the situation which existed before the wrongful act was committed,
provided and to the extent that restitution: (a) is not materially impossible; (b) does not involve a burden
out of all proportion to the benefit deriving from restitution instead of compensation. Essentially, what
restitution is, is to establish the status quo and reestablish the situation which existed before the wrongful
act. Restitution may also involve the reversal of some juridical or legal act e.g., if the state has passed a
legislation which conflicts with its obligation under international law, the state would have to repeal that
law which breaches the states international obligation. If it is a judicial decision, which was rendered and
was in violation of the states obligation under a treaty or customary law, restitution must involve the
reversal of that judicial decision to avoid continuing violation. In some cases, restitution may be
materially impossible and where it is impossible then the option of compensation is resorted to
b. Compensation
Article 36 provides that the State responsible for an internationally wrongful act is under an obligation to
compensate for the damage caused thereby, insofar as such damage is not made good by restitution. The
compensation shall cover any financially assessable damage including loss of profits insofar as it is
established. Compensation has to be given when restitution is either materially impossible or restitution
alone is insufficient to address the injury in question. Compensation is paid for damages that are material
which can be financially assessed.
c. Satisfaction
Satisfaction is a form of reparation, which is normally given for moral damages or injuries which are not
material and which ordinarily cannot be quantified in terms of money. Article 37 provides that the State
responsible for an internationally wrongful act is under an obligation to give satisfaction for the injury
caused by that act insofar as it cannot be made good by restitution or compensation. so if the damage
done is of a kind which is moral and not material, and as such cannot be remedied by compensation or
restitution then satisfaction. Or the damage done has components that can be satisfied by restitution,
components that can be satisfied by compensation and components that can be satisfied by satisfaction
and such making restitution alone or with compensation may not be sufficient and as such the need to
make satisfaction. Article 37(2) adds that satisfaction may consist in an acknowledgement of the breach,
an expression of regret, a formal apology or another appropriate modality like promise of non-repetition.

THE USE OF FORCE

Thomas Aquinas for example spoke of just war which had to do with avenging injures suffered where the
guilty party has refused to make amends hence just wars was embarked upon to punish wrong and restore
peaceful status quo but no further and at the time argued to be in conformity with the Divine law. The
concept of just wars however was disappeared with the emergence of the treaty of Westphalia 1648.
States were deemed as sovereign and equal and as such no state could judge whether another’s cause was
just or not. The sovereign equality of states which has already been discussed supra, confers upon each
state, the right to conduct its internal affairs, free from the interference of other states, subject only to the
rules of international law. This is termed as the doctrine of Non-intervention. States are thus obliged to
refrain from actions with may be construed as an intervention in the sovereign affairs of other states.
Before 1918, the right to use force was considered a matter of sovereign prerogative and the waging of
war was recognized as lawful under international law subject to certain rules of international law like;
The law of wars: the numerous Hague conventions on the laws of war 1899, 19007, Reprisals: illegal
military measures adopted in retaliation for previous illegal acts of another state, The use of force for the
recovery of debt: The Hague Convention Respecting the Limitation of the Employment of Force for the
Recovery of Contract Debts 1907.
The League of Nations and the Kellogg–Briand Pact
Towards the end of the First world war in 1918, the international community begun to search for ways to
regulate the use of force by states. This led to the formation of the League of Nations in 1919. Article 12
of the league’s covenant sought to provide that, in an event where there is rapture between two states,
they, they must submit the matter to the council and agree not to resort to use of force until after 3months
of the council’s report on the matter. Thus, as said by Ademola Abass, the league did not really prohibit
the use of force citing article 10 that only sought to encourage state to resort to the use of force but did not
prohibit it. In 1928, further attempts were made at regulating the use of force. The Kellogg-Briand pact
(pact of Paris) was thus negotiated and adopted b 15 states to which Article 1 expressly condemned by
renouncing the resort to the use of force as a solution to international controversies. At its peak, 63 states
became signatories to it but reservations were made to it in the name of self-defense. Ademola Abass
again explained that prohibition was not seen here either because renouncing is not the same as
prohibition. These two accords failed to prohibit the use of force because;
a. The Covenant and the Pact did not prohibit the use of force, but merely put pressure on States not
to resort to it.
b. None of the treaties provided State parties with the right of self-defence.
c. There were no sanctions against defaulters. Therefore, State parties to the treaties did not feel any
significant pressure to respect the rules.
d. Not all States participated in the League or the Pact. The USA never joined the League, despite
signing up to its Covenant, and the (then) Soviet Union never signed the Kellogg–Briand Pact
and was expelled from it. Without the simultaneous participation of these two powerful States in
any effort to regulate the use of force at that time, it would be impossible to achieve the desired
result
The UN Charter and the prohibition of the use and threat of force
The regulation of the use force under the UN Charter is fundamentally different from other regimes.
Article 2(3) of the UN Charter provides that all members shall settle their international disputes by
peaceful means, in such a manner that international peace and security, and justice, are not endangered.
Article 2(4) of the UN Charter adds that 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
manner inconsistent with the purposes of the United Nations. Article 2(4) represents customary
international law (a jus cogens to be particular) and thus unlike the other regimes, binds states whether
they be parties to the charter or not which is codified in Article 2(6) of the UN Charter, Nicaragua v
USA. Article 2(4) effectively prohibits all measures of force except those permitted by the Charter
Albania v United Kingdom (the Corfu channel case).
What would be the meaning of force under Article 2(4)? General Assembly Resolution 2625 (XXV), the
Declaration on Principles of International Law Concerning Friendly Relations and Co-operation
Among States 1970 have interpreted the contents and implication of Article 2(4) and identified the
following duties;
a. Every state has a duty to refrain in its 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. Such a threat or use of force constitutes a
violation of international law and shall never be employed as a means of settling international
disputes.
b. A war of aggression constitutes a crime against the peace for which there is responsibility under
international law
 c. Every state has a duty to refrain from the threat or use of force to violate the existing international
boundaries of another state or as a means of solving international disputes, including territorial
disputes and problems concerning the frontiers of states.
d. States have a duty to refrain from acts of reprisals involving the use of force.
e. Every state has a duty to refrain from organizing or encouraging the organization of irregular
forces or armed bands, including mercenaries, for incursion into the territory of another state.
f. Every state has the duty to refrain from organizing, instigating, assisting or participating in acts of
civil strife or terrorists’ acts in another state or acquiescing in organized activities within its
territory directed towards the commission of such acts, when such acts involve a threat or use of
force
The scope of Article 2(4) clearly extends to uses of force which do not amount to war in the technical and
legal sense of the term. However, it is unlikely that the provision relates to political or economic coercion,
although this may be a violation of the duty of non-intervention.
The concept of aggression
Prevention of aggression is a stated purpose of the United Nations, and so aggression is prohibited by
Article 2(4) as being inconsistent with the purposes of the organization. After a considerable period of
discussion, in 1974 the General Assembly adopted the Resolution on the Definition of Aggression, GA
Resolution 3314 (XXIX). Article 1 defines aggression as: The use of armed force by a state against the
sovereignty, territorial integrity or political independence of another state, or in any other manner
inconsistent with the Charter of the United Nations.
Threat of force
In addition to use of force, Article 2(4) also prohibits the threat of force. A threat of force is a form of
cohesion. A threat is unlawful under Article 2(4) if the threatened force would be illegal when used. E.g.
In 2013, the USA threaten to use force against the Syrian government. It was unlawful because it was not
sanctioned by the UN. Note that deterrence does not justify a threat or make it legal. The ultimatum
issued by France and UK in 1956 demanding a ceasefire within 12hours would be a threat of force. In
1994 when Iraqi artillery and tanks were deployed in positions pointing toward and within range of
Kuwait with ammunition at the ready on the Iraqi side of the border was rendered by the UK as a threat of
force and a breach of article 2(4)
Exceptions to the prohibition of the Use of Force
Despite the strict prohibition against the use of force under Article 2(4), the Charter permits certain
exceptions to the rule. We need first to understand that Article 2(4) prohibits only unilateral use of force
or force not used in self-defence.
a. Self defence
As an inherent right, every sovereign state has the right to defend itself against attackers. This rule of
customary international law was held in the Caroline case which gave the prerequisite to lawfully
exercise self-defense;
1. An actual or threatened infringement of the rights of the defendant state and an overwhelming
need to take immediate action
2. A failure on the part of the sovereign authorities to prevent the occurrence of an attack. There
must be no moment of deliberation for the state relying on the self-defense before the attack on it.
 3. A degree of proportionality or reasonableness between the original aggression and the actions
taken in self-defense. The act justified by the necessity of self-defense must be limited by the
necessity and kept within it.
Article 51 of the UN Charter reaffirms this inherent right to defend one’s state. The article provides that
the legitimate exercise of self-defense depends on the existence of ‘an armed attack’ against a Member
of the organization. It seems as a condition precedent to resort to self-defense or collective self-defense
under Article 51, that it can be resorted to only if the state is under armed attack. Any other form of force
or threat of use of force below the gravity of an armed attack may only entitle the state to refer to counter
measures like retortions. Further, measures taken in self-defense are subject to review by the Security
Council although such action does not depend on the prior permission of that organ. It seems from article
51, that the charter does not support anticipatory self-defense. Armed attack may include sending of
armed bands into the territory of another state to be used against it or assisting rebels in the form of
provision of weapons or logistical or other support to attack another state.
i. Protection of nationals
Prior to 1945, the protection of nationals abroad was construed a legitimate exercise of the right of self-
defense, recognized in both the writings of jurists and the practices of states Spanish Zones of Morocco
Claim. However, it is unclear whether this customary right continues to exist in the light of the restrictive
interpretation of self-defense stipulated in Article 51. Notwithstanding this uncertain legal situation, a
number of states have justified the use of force for the protection of nationals. In 1976, Israel forcibly
freed its nationals taken hostage by hijackers at Entebbe Airport in Uganda. In 1983, the USA deployed
its troops to Grenada, apparently to protect American medical students caught up in the country’s turmoil.
It remains however unclear whether the international community as a whole is prepared to accept the
legitimacy of such actions which clearly extend beyond the literal phrasing of Article 51
b. Collective self-defense
Article 51 of the UN Charter expressly recognizes the right of collective self-defense. A number of states
may come together to defend themselves against an armed attack or an attacked state may call on other
states to aid it defend itself against attackers. This provision is the legal basis for mutual defense
agreement such as the NATO Alliance and the Warsaw Pact. Measures taken in collective self-defense
are equally susceptible to review by the Security Council. Further, such measures may only be taken until
the Security Council has taken appropriate measures to secure international peace and security. This
means that after the security council takes appropriate measures to secure international peace and security
in pursuance of the instant use of force, the collective self-defense must cease and allow the security
council to operate. The requirements of collective self-defense are similar to that of self-defense but
added are that; in the situation where an attacked state calls upon another state to come to its aid, it must
be proved that the attacked state indeed sought the aid of the aiding state in the exercise of the right of
collective self-defense. The request must be express but where there is a prior treaty like NATO which
says that attacking one-member means attacking the entire group and thus member states would
automatically come in to aid.
c. Measures authorized by a competent organ of the organization
Obviously, an exception to the prohibition to the use of force under Article 2(4) would be in a situation
when the conduct constituting the use of force was authorized by a competent organ of the organization
which in most cases is the security council.
Retortion: this is an adoption by one state of an unfriendly and harmful act which is nevertheless lawful
as a method of retaliation against the injurious legal activities of anther state. It may include the severance
of diplomatic relations and the expulsion or restrictive control of aliens or other economic and travel
restrictions. This is the opposite of reprisal which is also retaliation but through illegal means like using
armed attack as a means of retaliation. In retortion, the state may retaliate by waiving the immunities of
the diplomats of the other state or cut of aids to the other state. In recent occurrences, America putting
travel restrictions on Ghana after the refusing to take deportees by Ghana can be a practical example.
Self-determination and the use of force
General Assembly Resolution 2623 (XXV) of 1970, more commonly known as the Declaration on
Principles of International Law Concerning Friendly Relations and Co-operations Among States
provides inter alia; By virtue of the principle of equal rights and self-determination of peoples enshrined
in the Charter, all peoples have the right freely to determine, without external interference, their political
status and to pursue their economic, social and cultural development, and every state has the duty to
respect this right in accordance with the provisions of the Charter. The existence of this right creates a
number of problems in relation to the regulation of the use of force. Can force be used in order to
achieve the goal of self-determination?

THE LAW OF THE SEA

Much of the discussion would be on the United Nations Convention on the Law Of the Sea (UNCLOS)
which was concluded in 1982 but came into force in 1994. Prior to the making of the UNLCOS of 1982,
there were a number of conferences in an attempt to codify the laws of the sea. These were;
a. The Hague conference of 1930 convened by the league of nations
b. The Geneva conferences of 1958 and 1960 convened by the UNO. These conferences were; the
Geneva convention on the territorial sea and the contiguous zone (1958), the Geneva convention
on the High Seas, the Geneva convention on the continental shelf, and the Geneva convention on
Fishing and conservation of the living resources of the High Seas.
These prior conventions had some shortcomings which called for the Geneva conference of 1973 -1982
which was convened by the UN and named UNCLOS. Some of these shortcomings are;
a. They did not contain a rule determining the width of the territorial sea and determining the
fishing rights of coastal states beyond their territorial sea
b. The development in techniques of underwater exploitation of oil and other mineral resources
called or new rules to govern it
c. Post-colonial states did not take part in the drafting of the Geneva conventions and hence the
need for a new one to ensure their full participation.
NB: The UNCLOS codified all four Geneva conventions so we’d refer to them as we go
Legal regimes of Maritime Zones
The UNCLOS creates a regime of governance for maritime zones that fall under national jurisdiction
namely:
a. The Territorial sea
 b. The Contiguous zone
c. The Exclusive Economic zone
d. The Continental shelf
e. The High seas – this is beyond national jurisdiction as an exception
f. The Deep-sea bed and subsoil
NB: The delimitation of maritime boundaries are created by states, on the basis of bilateral or multilateral
agreements in light of the rules of international law.

THE TERRITORIAL SEA

Article 1 of the Convention on territorial sea and contiguous zone 1958 and Article 2 of the UNCLOS
define a territorial sea as the belt of sea adjacent to the coast of a state and over which the state exercises
sovereignty. Though the coastal state exercises sovereignty over the territorial sea, the exercise of
sovereignty is subject to the UNCLOS and other rules of international law Article 2(3) of the UNCLOS.
An example is the right of innocent passage by foreign ships
 Width of the Territorial sea
Article 3 of UNCLOS provides that; every state has the right to establish the breadth (width) of its
territorial sea up to a limit not exceeding 12 nautical miles, measured from the baselines determine
accordance with this Convention’. This means that states exercise discretion on the width of their
territorial sea however, this cannot exceed 12 nautical miles. The territorial sea is said to be measured
from the normal baseline which Article 5 of the UNCLOS and Article 3 of CTSZ explains as the low-
water line along the coast as marked on large-scale charts officially recognized by the coastal State Anglo
Norwegian Fisheries case. However, there are exceptions to this rule which are;
a. Straight baselines; where the coast of a state is deeply indented and cut into, or if there is a
fringe of islands along the coast in its immediate vicinity, straight baselines joining the
appropriate points may be employed in order to ascertain the breadth of the territorial sea Article
7(1) of UNCLOS, Article 4(1) of CTSZ, Anglo Norwegian fisheries case, Qatar v Bahrain
b. Low tides: In situations where a low-tide elevation is situated at a distance not exceeding the
breadth of the TS, from the mainland or an island, the low water line of that low-tide may be
used as the baseline in measuring the breadth of the TS Article 13(1) of the UNCLOS. Thus
here, the measurement will start from the outer layer of that elevation and not from the normal
low water mark along the coast line.
There are others that can be discussed here including bays, historic bays inter alia. We would resort to his
notes for explanation at group meeting.
 Internal waters
Article 8(1) of the UNCLOS defines internal waters to be waters on the landward side of the baseline of
the territorial sea e.g. Ports, harbors, lakes, rivers etc. These waters are considered as part of the land
territories of the coastal states and as such are subject to the territorial jurisdiction and sovereignty of the
coastal state. Here, local law of the coastal state apply and thus to merchant ships and all found on board
NNB v Ocean Trade co. However, for warships and national ships, the authorization of the captain of the
flag state is needed before the coastal state may exercise jurisdiction over the ship or its crew, action by
the coastal state necessary to preserve the internal order of the state, inter alia the instances labelled in
Article 27 and 28 of the UNCLOS, Argentine warship case

 Innocent passage in the territorial sea

Article 17 of UNCLOS and Article 14 of CTSZ 1958 provides that “subject to this convention, all ships
of states whether coastal or landlocked enjoy the right of innocent passage through the territorial sea”.
Ordinarily, a foreign merchant ship cannot enter or sail though a territory which is under the sovereignty
of another state without the consent of the costal state. However, this provision allows ships to without
the consent of the coastal state sail through its territorial sea without any restrictions from the coastal
state. Passage has been explained in Article 18 of UNCLOS as navigation through the territorial sea for
the purposes of either traversing that sea without entering internal waters, or of proceeding to internal
waters, or if making for the high seas from internal waters.’ Article 18(2) adds that the passage must be
continuous and expeditious, however, may include temporary stoppages only if they are incidental to
ordinary navigation or necessitated by distress or force majeure or rendering assistance ships, persons or
aircraft in distress. In defining innocent passage, Article 19 provides that passage is said to be innocent so
long as it is not prejudicial to the peace, good order or security of the coastal state Corfu channel case.
Passage is said to be prejudicial if the foreign ship engages in any of the following activities spelled out in
Article 19(2); (a) any act amounting to a breach of Article 2(4) of the UN Charter against the coastal
state; (b) any exercise or practice with weapons of any kind; (c) any act aimed at collecting information to
the prejudice of the defence or security of the coastal State; (d) any act of propaganda aimed at affecting
the defence or security of the coastal State; (e) the launching, landing or taking on board of any aircraft;
(f) the launching, landing or taking on board of any military device; (g) the loading or unloading of any
commodity, currency or person contrary to the customs, fiscal, immigration or sanitary laws and
regulations of the coastal State; (h) any act of willful and serious pollution contrary to this Convention; (i)
any fishing activities; (j) the carrying out of research or survey activities; (k) any act aimed at interfering
with any systems of communication or any other facilities or installations of the coastal State; (l) any
other activity not having a direct bearing on passage. Again, the Corfu channel case can be referred to.
Although foreign ships enjoy the right of innocent passage through the territorial sea of coastal states,
Article 21 of the UNCLOS provides that coastal states may adopts laws which must conform with the
UNCLOS in relation to innocent passage in respect of inter alia; ensuring the safety of navigation and
regulation of maritime traffic, protection of cable and pipelines, conserve living resources of the sea,
prevent pollution, prevent infringement of customs, fiscal, immigration and sanitary laws of the coastal
state etc. These laws must be published to the knowledge of al other states to ensure their adherence and
foreign states are thus under obligation to comply with such laws. However, from the wording of Article
19 a mere breach of the rules would not render the passage non-innocent as the breach would have to be a
breach of Article 19.

 Jurisdiction of coastal states over foreign ships on the territorial sea

Where a ship engaged in innocent passage, the coastal state may only exercise limited criminal
jurisdiction. The coastal state may exercise this limited criminal jurisdiction in respect of the provisions in
Article 27 of the UNCLOS which provides that the coastal state cannot exercise criminal jurisdiction over
a foreign ship in its territorial waters unless; (a) if the consequences of the crime extend to the coastal
State; b) if the crime is of a kind to disturb the peace of the country or the good order of the territorial sea;
(c) if the assistance of the local authorities has been requested by the master of the ship or by a diplomatic
agent or consular officer of the flag State; or (d) if such measures are necessary for the suppression of
illicit traffic in narcotic drugs or psychotropic substances. Thus, if the crime occurred on the foreign ship
in the territorial, the coastal in attempt to exercise jurisdiction must prove that the crime falls under any of
the grounds in Article 27. Pianka v The Queen. However, Article 27(2) adds that the coastal state has the
right to take steps authorized by its laws for the purpose of investigating or effecting an arrest onboard a
foreign ship passing through its territorial sea after leaving its internal waters. Thus, if I committed
murder upon a foreign ship whilst it was within Ghana’s internal waters, the foreign ship on reaching the
territorial sea can be searched and an arrest made on it in accordance with local law notwithstanding the
provision in Article 27(1).
With respect to civil jurisdiction, Article 28 of the UNCLOS and Article 20 of CTSZ 1958 precludes civil
jurisdiction by providing that; the coastal state should not stop or divert a foreign ship passing through
the territorial sea for the purpose of exercising civil jurisdiction in relation to a person on board the ship.
The coastal State may also not levy execution against or arrest the ship for the purpose of any civil
proceedings, save only in respect of obligations or liabilities assumed or incurred by the ship itself in the
course or for the purpose of its voyage through the waters of the coastal State.
With respect to warships, as we mentioned in state jurisdiction, the coastal state cannot arrest it should it
violate any of its local laws governing passage of foreign ships passing through its territorial sea. The best
the coastal state can do is to ask the warship to leave the territorial sea immediately as provided for in
Article 30. In an instance where a governmental ship or a warship used for non-commercial purposes
breaches the of regulation and causes damage to the coastal state, the flag state would be responsible for
the loss or damage caused Article 31. A warship is defined in Article 29.

THE CONTIGUOUS ZONE

As provided for in Article 33 of the UNCLOS, the contiguous zone is a zone contiguous to the territorial
sea of the coastal state in which the coastal state may exercise necessary control to;
a. prevent infringement of its customs, fiscal, immigration or sanitary laws and regulations
within its territory or territorial sea;
b. punish infringement of the above laws and regulations committed within its territory or
territorial sea
As provided for in Article 33(2) of the UNCLOS, the zone may not extend beyond 24 nautical miles
from the baseline from which the width of the territorial sea is measured i.e. 12 nautical miles from
where the territorial sea ends. The contiguous zone forms part of the EEZ and it is optional. i.e. the
coastal state can decide to have a contiguous zone or not. If it decides to have one, then the coastal state
may exercise control over it as stipulated in Article 33(1).

THE EXCLUSIVE ECONOMIC ZONE (EEZ)

Article 55 of the UNCLOS defines it as an area beyond and adjacent to the territorial sea. Article 57
provides that the EEZ shall not extend beyond 200 nautical miles from the baselines from which the
breadth of the territorial sea is measured. In a situation where a coastal state decides not to have a
contiguous zone, then the EEZ would follow immediately where the territorial sea ends. A state may
decide not to have this zone either and in such a situation the waters adjacent to its territorial sea becomes
part of the High Seas. This zone is established for economic purposes like its name suggests. Article
56(1) of the UNCLOS sets out the rights of the coastal state in relation to the EEZ and provides that in the
exclusive economic zone, the coastal State has:

a. sovereign rights for the purpose of exploring and exploiting, conserving and managing
the natural resources, whether living or non-living, of the waters superjacent to the
seabed and of the seabed and its subsoil, and with regard to other activities for the
economic exploitation and exploration of the zone, such as the production of energy from
the water, currents and winds
b. jurisdiction as provided for in the relevant provisions of this Convention with regard to:
(i) the establishment and use of artificial islands, installations and structures;
(ii) marine scientific research;
(iii) the protection and preservation of the marine environment;
c. other rights and duties provided for in this Convention.
Article 58 of the UNCLOS provides for the rights of other states in the EEZ as in whether coastal or
landlocked, enjoy freedom of navigation and overflight, laying of submarine cables and pipelines, and
other internationally lawful uses of the sea related to these freedoms, such as those associated with the
operation of ships, aircraft and submarine cables and pipelines, and compatible with the other provisions
of this Convention.
Article 73 of the UNLCOS on the enforcement of laws and regulations of the coastal state in the EEZ
provides that the coastal State may, in the exercise of its sovereign rights to explore, exploit, conserve and
manage the living resources in the EEZ, take such measures, including boarding, inspection, arrest and
judicial proceedings, as may be necessary to ensure compliance with the laws and regulations adopted by
it in conformity with this Convention. Article 73(3) adds that the coastal state may impose various
sanctions on those who violate the laws in the EEZ with the exception of imprisonment.
NB: The internal laws of the coastal state do not extend to affect foreign ships in the EEZ except those
that have been enacted specifically in the pursuance of the sovereign rights of the coastal states in the
EEZ provided for by the convention i.e. to explore, exploit, conserve and manage the resources in the
EEZ M/V Saiga (No. 2).

THE CONTINENTAL SHELF

Can be described as the gently sloping platform of submerged land surrounding the continents and
islands. It normally extends to a depth of about 200 meters at which point the seabed falls away sharply.
The continental shelf was once part of the High Seas but its legal status was changed after the 2 nd World
War following the Proclamation by the US President Harry Truman. The court in North sea continental
shelf cases explained that “…the rights of coastal states in respect of the area of the continental shelf that
constitutes a natural prolongation of its territory into and under the sea ipso facto and ab initio by virtue
of its sovereignty over the land and as an extension of it in an exercise of sovereign rights for the purpose
of exploring the seabed and exploiting its natural resources.
Article 76(1) of the UNCLOS provides that the continental shelf of a coastal State comprises the seabed
and subsoil of the submarine areas that extend beyond its territorial sea throughout the natural
prolongation of its land territory to the outer edge of the continental margin, or to a distance of 200
nautical miles from the baselines from which the breadth of the territorial sea is measured where the outer
edge of the continental margin does not extend up to that distance. Thus, a coastal state is entitled to 200
nautical miles continental shelf, however, if the shelf extends beyond the 200 miles, and there is no
opposite or adjacent state, the coastal state may extend its continental shelf to 350 nautical miles from the
baselines from which the breadth of the territorial Article 76(5), (6) of the UNCLOS.
Article 77(1) provides that the coastal State exercises over the continental shelf sovereign rights for the
purpose of exploring it and exploiting its natural resources. Article 77(2) adds that the rights referred to in
paragraph 1 are exclusive in the sense that if the coastal State does not explore the continental shelf or
exploit its natural resources, no one may undertake these activities without the express consent of the
coastal State. However, all states are notwithstanding still entitled to lay and maintain submarine cables
and pipelines on the continental shelf in accordance with the provisions of the UNCLOS as provided for
by Article 79. NB: The rights of the coastal State over the continental shelf do not affect the legal status
of the superjacent waters or of the air space above those waters Article 78.

THE HIGH SEAS

Article 87 of the UNCLOS provides that The high seas are open to all States, whether coastal or land-
locked. Freedom of the high seas is exercised under the conditions laid down by this Convention and by
other rules of international law. It comprises, inter alia, both for coastal and land-locked States:
a. freedom of navigation
b. freedom of overflight
c. freedom to lay submarine cables and pipelines, subject to Part VI
d. freedom to construct artificial islands and other installations permitted under international law,
subject to Part VI
e. freedom of fishing, subject to the conditions laid down in section 2
f. freedom of scientific research
Article 89 provides that no State may validly purport to subject any part of the high seas to its
sovereignty.
Jurisdiction on the High Seas
Article 92 of the UNCLOS provides that Ships shall sail under the flag of one State only and, save in
exceptional cases expressly provided for in international treaties or in this Convention, shall be subject to
its exclusive jurisdiction on the high seas. Streaming from here, there are quite some instances in which
the issue of jurisdiction arises on the high seas. Some of these are;
a. Collision: In the event of a collision or any other incident of navigation on the High Seas, Article
97(1) of the UNCLOS gives jurisdiction to the authorities of flag state or the state of which that
person who causes the collision is a national.

b. Hot Pursuit of a foreign ship: In certain circumstances, a coastal state may extend its
enforcement jurisdiction unto the High Seas to pursue and seize a ship which is suspected to have
infringed its law. For Hot pursuit to be effective, the pursuit must be commenced when the
foreign ship or one of its boats is within the internal waters, the archipelagic waters, the territorial
sea or the contiguous zone of the pursuing State, and may only be continued outside the territorial
sea or the contiguous zone if the pursuit has not been interrupted Article 111(1) of the UNCLOS,
M/V Saiga (No. 2) case. If the pursuit commences in the contiguous zone, while the ship is in the
 contiguous zone, then it may only be undertaken if there has been a violation of the rights
exclusively for the protection of the contiguous zone and the same rules applies to the EEZ and
the Continental Shelf. The right of hot pursuit ceases immediately enters the territorial sea of its
own state or that of a 3rd state Article 111(3) of the UNCLOS, I’m Alone. Article 111(5) of the
UNCLOS adds that the pursuit may be exercised only by warships or military aircraft, or other
ships or aircraft clearly marked and identifiable as being on government service and authorized to
that effect.

c. Piracy: there is universal jurisdiction to arrest and try person engaged in piracy on the High sea
or any other place outside the jurisdiction of any State Article 105 of the UNCLOS.

d. Stateless Ships: it is lawful to seize a stateless ship on the High Seas. It is possible however that
arbitrary confiscation or destruction of a stateless ship would entitle the national state of the ship-
owner to make an international claim Asya case

e. The right of approach: The general rule is that merchant ships on the High seas are subject to
control only by warships of flag states for the purpose of investigating on board to ascertain its
nationality when suspected on reasonable grounds to have come from the state of the same flag
states Molvan v AG of Palestine

f. Special reciprocal power of arrest under a treaty: the power of arrest over another’s merchant
ship on the high seas may be based on a treaty however, reciprocal power of arrest is limited to
arrest only. After arrest, the offenders are to be handed over to the flag state for trial in most
cases.

g. Actions authorized by the UN:

THE DEEP SEABED and SUBSOIL

The status of the seabed and ocean floor are described as both a res nullius and res communis, however,
it seems the declaration of principles of the seabed and ocean floor appears to favor the concept of res
communis (common heritage of mankind). A couple of principles are in operation here. Some are;
a. The resources of the seabed are declared as re communis
b. The status of the seabed does not affect the status of the superjacent high seas
c. The exploitation of the seabed must be done in accordance with the regime of the 1982
convention and the UNCLOS.
The International seabed authority (ISA) is the special body that administers the seabed.

DELIMITATION OF MARITIME BOUNDARIES BETWEEN STATES

WITH OPPOSITE/ADJACENT COASTS
 DIPOMATIC AND CONSULAR LAW
Diplomacy is usually defined as “the official activity of a given State’s organs of external relations in
pursuing through peaceful means the objectives and- tasks of its foreign policy and in protecting its rights
and interests as well as those of its citizens abroad”
The concept of Diplomatic and Consular law
It comprises the principles and norms relating to procedures for conducting relations among states and
among other subjects of international law. It primarily regulates the legal position and activities of State
organs of external relations and of officials and staff members of these organs as well as questions
relating to the privileges and immunities of inter-governmental organization and of their official
members. It represents one of the oldest branches of international law.
The institution of permanent consul developed in ancient Greece and with it the consular law which then
developed rapidly in the period of feudalism. NB: African states also contributed much to this new branch
of international law. The principle of equal rights of states had been a general recognized principle of
international law however, it was limited in scope especially evident in the fact that there was no equality
between “civilized” and “non-civilized” states and hence their representatives. Under the AU, steps were
taken to equalize the status of diplomatic reps of all states notwithstanding its size or level of
development. Thus, the reps of African states (i.e. Ambassadors, envoys, and all other diplomatic agents)
were considered as possessing equal powers irrespective of their rank. This idea was incorporated into
modern international law so that today, ever state large or small may appoint ambassadors or envoys at its
own discretion.
Organs of State for International relations
These are those organs with whose help a State conducts its relations with other States with international
organizations. Their nature and powers are determined by the municipal laws of its state and international
law. They are broken into Organs at Home and Organs located abroad.
Organs at Home
These are permanently located in the given State’s territory. These are the Head of state or Government,
Ministry of foreign affairs and Ministries that relate to other states in specific fields (e.g. Trade). The
heads of these institutions are in the capacity as ex officio i.e. they do not need full powers with regard to
external matters. Ministries of Foreign Affairs which are located in the State’s territory are responsible
for the external relations of its state. It is concerned with the State’s external relations on a day-to-day
basis under the guidance of the government. They are in charge of the state’s diplomatic missions and
consulates abroad. They are normally comprised of 3 divisions; Territorial division, Functional division
and Administrative division.
Organs located Abroad
The organs located abroad are; diplomatic missions(embassies), consulates, permanent state missions to
international organizations and Special mission (temporary organ sent to attend conferences and
ceremonies)
DIPLOMATIC MISSIONS (EMBASSIES)

a. The Head of the Diplomatic Mission

Article 4(1) of the Vienna convention n Diplomatic relations 1961 provides that before the appointment
of the head of the diplomatic mission, the government of host state is asked for its agreement to receive
the candidate of the sending state for appointment. Article 4(2) adds that the receiving State is not obliged
to give reasons to the sending State for a refusal of agrément. At the time of departure to the receiving
state, the ambassador or envoy is given letters of credence signed by the head of the sending state
addressed to the receiving state.

b. Functions of diplomatic missions

The functions of diplomatic missions are determined by international law and the internal laws of the
given state. Article 3 of the Vienna convention n Diplomatic relations 1961 lists inter alia the functions
of the diplomatic missions which are;
i. Representing the sending State in the receiving State
ii. Protecting in the receiving State the interests of the sending State and of its nationals, within the
limits permitted by international law
iii. Negotiating with the Government of the receiving State
iv. Ascertaining by all lawful means conditions and developments in the receiving State, and
reporting thereon to the Government of the sending State
v. Promoting friendly relations between the sending State and the receiving State, and developing
their economic, cultural and scientific relations.
Apart from these functions, there may be situations where a state’s diplomatic mission also carry out
consular functions and in such cases its structure includes consular departments. This mostly happens
because of financial and logistics constraints which causes states to merge both though in principle there
are independent institutions with different legal regimes.

c. The beginning and termination of Diplomatic mission

Article 13 of the Vienna convention on Diplomatic missions 1961 provides that the time when the head
of the diplomatic mission is considered to have begun his functions in the host state depends on the
practice of that states which must be applied in a uniform manner. And this manner may be from the
moment the head of the diplomatic mission submits his letter of credence or from the moment certified
copies of his letters of credence are presented to the ministry of foreign affairs of the host state.
The diplomatic representative accredited in a given country remains such until his official functions are
terminated. The functions may be terminated in the ff ways;
i. Through the recall by the accrediting state Article 9. This is the most common cause of
termination.
ii. if the host state declares that the diplomat is no longer trusted (persona non grata) Article 9
iii. As a result of the cessation of diplomatic relations
iv. In the even of a war between the sending state and the receiving state
v. If the sending or receiving state ceases to exist as a subject of international law.

d. The personnel of Diplomatic missions

The personnel of the diplomatic mission is divided into 3 divisions;
 i. the diplomatic staff: includes the head of mission and all other diplomatic ranks. These are all
citizens of the sending state and they are appointed by or on behalf of the president of the sending
state
ii. the administrative/technical staff: these include accountants, translators, typists, technicians etc.
These could be a citizen of the sending state, the host state or a 3 rd state but with consent of the
host state and they are appointed by the minister of foreign affairs of the sending state.
iii. service staff: includes drivers, couriers, doormen etc. they could be a citizen of the host state or a
3rd state but with consent of the host state and they are appointed by the head of the mission.

e. The diplomatic corp

Consists of the heads of all diplomatic missions accredited in a given state and their family members.
Their function is mainly ceremonial. Their head called the Dean is the most senior in terms of
accreditation in that given state.

f. Privileges and immunities of the diplomatic missions and their members

These are special rights and privileges accorded to the diplomatic mission and its members under
international law primarily to provide the necessary conditions that they need to carry out their functions.
And also, because the diplomatic mission and its member represent the state, it follows that in respect for
the sovereign equality of states, immunities and privileges enjoyed by states and their respective states in
this sense be conferred on them. This is recorded in the preamble of the Vienna convention on diplomatic
relations 1961. Diplomatic immunities and privileges are divided into 2 categories; these are;
 Privileges and immunities of the diplomatic mission
1. The inviolability of the premises: Article 22(1) of the Vienna convention on Diplomatic
relations provides that the premises of the mission shall be inviolable and that the agents of the
receiving State may not enter them, except with the consent of the head of the mission. Article
22(2) adds that the host state is further responsible for taking all measures necessary to protect the
mission’s premises form unwarranted entry or damage and for preventing all breaches of the
mission’s security and avoiding insults to its worthiness and reputation. Article 22(3) also adds
that the premises of the mission, their furnishings and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment or execution.

2. Fiscal immunity of the premises: Article 23 provides that the premises of the mission, rented or
owned are also exempted from all taxes, duties and levies in the host state except for those that
are payments for specific services rendered.

3. The inviolability of the mission’s archives and documents: Article 24 provides that the
archives and documents of the mission shall be inviolable at any time and wherever they may be.

4. Freedom of missions to communicate: In communicating with its government, and with other
missions and consulates of the accrediting state, where ever they may be, the mission may use
appropriate means of communication including diplomatic couriers and coded telegrams as
provided for by Article 27(1). Article 27(2) provides that all official correspondences of the
mission shall be inviolable. Article 27(3) provides that diplomatic bags may not be opened or
detained. In addition to ordinary diplomatic couriers, Article 27(6) adds that the sending state
may designate ad hoc/ temporary diplomatic couriers who would enjoy diplomatic immunity only
until they deliver diplomatic mail to their destination.
 5. The right to use flags and emblems: Article 20 provides that the mission and its head poses the
right to use the flag and emblem of the sending State on the premises of the mission, including
the residence of the head of the mission, and on his means of transport

 The Personal privileges and immunities of its staff members

1. Personal immunity: Article 29 provides that the person of a diplomatic agent shall be inviolable.
He shall not be liable to any form of arrest or detention. The receiving State shall treat him with
due respect and shall take all appropriate steps to prevent any attack on his person, freedom or
dignity. Article 30(1) provides that the private residence of a diplomatic agent shall enjoy the
same inviolability and protection as the premises of the mission. Article 30(2) adds that the
diplomat’s papers, correspondence as well as his means of transportation are also inviolable.

2. Immunity from jurisdiction: Article 31 provides that a diplomatic agent shall enjoy immunity
from the criminal jurisdiction of the receiving State. He shall also enjoy immunity from its civil
and administrative jurisdiction, except in cases that concern real actions for privately-owned real
estate located in the territory of the host state; an action for inheritance in which the diplomat
represents as a private person; an action relating to any professional or commercial activity
exercised by the diplomatic agent in the receiving State outside his official functions. Obviously,
if the diplomat himself initiates proceedings in court, then he waives his immunity. Article 31(2)
provides that diplomats are not obliged to give evidence as witnesses. They also enjoy immunity
from administrative jurisdiction meaning they cannot be subjected to fines or administrative
penalties. They cannot be sued for automobile incidents or for damages. Best the victim can do is
submit such claims through the ministry of foreign affairs to forward to said embassy for
compensation to be made.

3. Fiscal immunity: Article 34 provides that a diplomatic agent shall be exempt from all dues and
taxes, personal or real, national, regional or municipal, with the exceptions of indirect taxes,
inheritance taxes etc.

4. Customs privilege: Article 36 provides that in accordance with the laws and rules that a host
state may adopt, states could permit diplomats to import objects to be used by their mission and
for their personal use and that of their family members without collecting customs duties, taxies
and levies with the exception of duties for storage, transportation and similar services. Article
36(2) adds that the personal baggage of a diplomatic agent shall be exempt from inspection,
unless there are serious grounds for presuming that it contains articles not covered by the
exemptions mentioned in paragraph 1 of this article, or articles the import or export of which is
prohibited by the law or controlled by the quarantine regulations of the receiving State. Such
inspection shall be conducted only in the presence of the diplomatic agent or of his authorized
representative. These privileges also extend to the family members of the diplomat.
NB: As provided for in Article 37(2), members of the mission’s administrative and technical staff along
with their family member living with them so long as they are not nationals of the host state enjoy
personal inviolability, inviolability of residence, immunity from criminal jurisdiction, exemption from
levies etc. immunity from civil and administrative jurisdictions exists only when they are performing
service duties.
Though all these immunities and privileges exist, the diplomat is also under a duty not to interfere in the
host state’s internal affairs. Though they may not be brought before a court, they may be declared persona
non grata.
All these immunities begin to operate from the moment the diplomat arrives on the territory of the host
state until his departure. The immunities continue to run even after the diplomat has ceased to be a
diplomat so long as his action was in fulfillment of his official duties. If it was in his private capacity, he
may be prosecuted once the immunities and privileges cease i.e. when he’s no longer a diplomat. NB: In
3rd states where the diplomat is probably transiting to or from the host state, the diplomat and his family
member enjoy inviolability and other immunities necessary for a peaceful transit.

CONSULAR FUNCTIONS
In addition to diplomatic relations, states may also maintain consular relations with other states and thus
exchange consular missions based on agreement between the sending state and the host state Article 2(1)
of the Vienna convention on consular relations 1963. Consular relations may be established between
states who do not have diplomatic relations and thus they may have consulate in the host state without
having an embassy. The termination of diplomatic relations also doesn’t ipso fact imply a suspension of
consular relations Article 2(3). The number of consular missions established in the host state is
determined by the agreement between the host and sending state. Consulates are headed by Consuls.
Unlike diplomatic reps, consuls do not have full powers. They represent their state only with regard to
specified range of issues and only in their own consular district.
Functions of consular missions
Article 5 of the Vienna convention on consular relations 1963 lists the consular functions which inter
alia include;
a. Protecting of the interest of its own state and of its nationals and legal persons
b. encouraging trade and promoting economic, cultural and scientific relations with the host state;
c. performing administrative and notarial functions for nationals of the State that it represents
d. performing duties relating to the ships and aircraft of its country and their crews
e. monitoring economic, legal and political development on its district and informing its state’s
foreign affairs department
In performing their functions, the consulates are guided by the law of their own States, and also by
international law, especially by treaties between their State and the host State. In performing their tasks,
consul may represent nationals and legal persons of their own country before a court and other organs of
the host country in accordance with procedures provided for by consular conventions and with the laws of
the host country. NB: A distinctive feature of the activities of African consulates in comparison with
European consulates is that the latter’s functions largely concern trade and economic matters, while
African consulates largely perform legal and administration functions.
In return for specific official duties the consulates collect consular fees both from their own nationals and
from foreign nationals. Such duties include: the granting or prolongation of passports and visas, the issues
of visas, the acceptance of applications on mattes of citizenship, the maintenance of registry records, the
legalization and notarization of documents, and activities relating to inheritance
Classes of consuls
The heads of consuls are divided into 4; the consul-general, consul, vice consul and consular agent. These
need Patent from the accrediting state and an Exequatur from the host state. In instances where the
consulate is subsumed under the diplomatic mission, the head of the consulate would be the head of the
diplomatic mission and as such in pursuance of practice among states, do not need the patent or
exequatur.
Just like the diplomatic mission, staff of the consular missions are divided into; consular staff,
administrative and technical staff and service staff.
Appointment of consuls
Article 10 provides that consuls are appointed by the accrediting State and are accepted to perform their
duties by the host States. Article 11 provides that the consul is given a consular patent i.e. a certificate
confirming his authority by the accrediting state which contains his full name, his category and class, the
consular district and the seat of the consular post. The sending state send the patent through diplomatic
means to the host state and if the host state agrees, admits to the exercise of his functions by an
authorization from the receiving State termed an exequatur, whatever the form of this authorization as
provided for by Article 12(1). Article 12(2) adds that the receiving state may refuse to grant the exequatur
and is not obliged to give reasons for its refusal.
Termination of Functions of the consular representative
Article 25 provides that The functions of a member of a consular post shall come to an end, inter alia:
a. When the consular rep is recalled by the sending state;
b. on withdrawal of the exequatur
c. when the receiving state declares the consular rep as persona non grata
Consular District
This is the district in which a consular rep conducts his activities. It is established by both states by
agreement and is recorded on the consular patent.
Consular corps
These are the total number of consuls in a given area. Its role is primarily ceremonial. Each consular corp
is headed by the Senior Consul.
Consular Privileges and Immunities
Just like diplomatic privileges and immunities, consular immunities are divided into personal immunities
and privileges and privileges and immunities of consular missions in order that consulates may carry out
their function free from the control of the authorities of the host state.
Article 31 provides for the inviolability of the consular premises such that the authorities of the receiving
State shall not enter that part of the consular premises except with the consent of the head of the consular
post or of his designee or of the head of the diplomatic mission of the sending State. The consent of the
head of the consular post may, however, be assumed in case of fire or other disaster requiring prompt
protective action. Their furnishings, the property of the consular post and its means of transport are also
inviolable. Under Article 32, they are exempted from all taxes and duties. Under Article 33, The consular
archives and documents are also inviolable at all times and wherever they may be. Under Article 35 they
have freedom to communicate with their government and its diplomatic missions and consulates and
hence to use diplomatic and consular couriers and codes. Their official correspondences are inviolable.
They also have the right to hoist their country’s flag on their premises and means of transportation for
official duties.
Article 41 provides for the personal inviolability of the consular rep i.e. they are not be liable to arrest or
detention pending trial, except in the case of a grave crime and pursuant to a decision by the competent
judicial authority. Article 43 provides that they shall not be amenable to the jurisdiction of the judicial or
administrative authorities of the receiving State in respect of acts performed in the exercise of consular
functions. However, actions of consuls as private citizens are subject to the jurisdiction of the host state.
Under Article 44 however, they may be called as witness in judicial and administrative proceedings but
are not obliged to provide evidence on matters associated with their consular activities or submit relevant
correspondences. Under Article 49 they are exempted from duties and levies except for indirect taxes and
collected for concrete services. They are exempted form taxes on their salaries. In effect, they are entitled
to similar immunities and privileges as diplomats. Their immunities and privileges depend on bilateral
consular agreements and on domestic legislations of the host state.

THE UNITED NATIONS AND ITS ORGANS

The failure of the League of Nations through the outbreak of the 2nd world war led to the formation of the
UN in 1945 for the furtherance of world peace and the prevention of a 3rd world war. The purposes and
principles as such as listed in Article 1 of the UN charter provides for the purposes enunciated in the
charter. These include;
1. To maintain international peace and security
2. 2. To develop friendly relations among nations based on respect for the principle of equal rights
and self-determination of peoples, and to take other appropriate measures to strengthen universal
peace
3. 3. To achieve international cooperation in solving international problems of an economic, social,
cultural, or humanitarian character, and in promoting and encouraging respect for human rights
and for fundamental freedoms for all without distinction as to race, sex, language, or religion
4. 4. To be a center for harmonizing the actions of nations in the attainment of these common ends.
Article 2 of the UN Charter also provides for the principles enunciated in the charter which its members
must act in accordance with. These include;
1. The principle of the sovereign equality of all its Members.
2. The principle of good faith in fulfilling the obligations assumed by Member states in accordance
with the Charter.
3. Settling international disputes by peaceful means in a manner that international peace and
security, and justice, are not endangered.
4. The principle of the prohibition of 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.
5. All Members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against which the
United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance of international
peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
 Members to submit such matters to settlement under the present Charter; but this principle shall
not prejudice the application of enforcement measures under Chapter VII.
In achieving these principles, the UN has some organs which are instrumental in the realization of these
principles and purposes. We would thus look at the ones most important for exams purposes. After all,
that’s what Sondem did anyway.

THE GENERAL ASSEMBLY

THE SECURITY COUNCIL

INTERNATIONAL COURT OF JUSTICE (ICJ)

The ICJ as provided for in Article 92 of the UN charter is said to be the principal judicial organ of the
UN. It was preceded by the Permanent Court of International Justice (PCIJ) which was established under
the auspices of the League of Nations in 1920. The PCIJ was however replaced by the ICJ in 1946. In
many respects, the statute of the ICJ is just as similar to that of the PCIJ, however, it is important to note
that unlike the PCIJ, the ICJ is the principal judicial organ of the UN made so by Article 92. The ICJ has
its seat in the Hague.
Functions of the Court
The court has a dual role;
i. To settle in accordance with international law the legal disputes submitted to it by States
ii. To give advisory opinions on legal questions referred to it by duly authorized international organs
and agencies
Organization of the Court
The ICJ is composed of 15members of whom no 2 members may be nationals of the same state Article 3
of the Statute of the ICJ who are elected regardless of their nationality, from among persons of high
moral character, who possess the qualifications required in their respective countries for appointment to
the highest judicial offices, or are jurisconsults of recognized competence in international law Article 2 of
the Statute of the ICJ. 5 of the judges are elected every 3 years to hold office for 9years. The election of
the judges must be reflective of the main forms of civilizations and principal legal systems of the world.
The members of the Court are elected by the General Assembly and Security Council from a list of
qualified persons drawn up by the national groups of the Permanent Court of Arbitration (PCA), or by
specially appointed national groups in the case of UN members that are not represented in the PCA
Article 4 of the Statute of the ICJ. Though not posited law, it has been the convention that among the 15
members, there should always be a national of each of the 5 permanent members of the Security council
at any given time. The members of the court are elected for a term of 9years and may be re-elected
Article 13 of the Statute of the ICJ. The composition of the court are appointed judges as independent
members and not state representatives and thus Article 31(1) of the Statute of the ICJ that judges of the
nationality of each of the parties in a case before the Court shall retain their right to sit in that case.
However, Article 31(3) of the Statute of the ICJ adds that where the bench on a case does not include a
national of either of the parties, the party may choose a judge to sit for the duration of that case known as
the ad hoc judge. Thus the number of judges on a case may in such a case rise to 17 judges. But note that
Article 25(3) of the Statute of the ICJ provides that a quorum of 9 judges shall be sufficient to constitute
the court. The ad hoc judges, having more inept knowledge about the various legal systems of the parties
are enjoined to the bench to bring able to bring to bear specific understanding of the dynamics of the
national context of the arguments put forward by the parties to the case. The ad hoc judges institute also
makes the court more attractive, since the parties would readily submit to the court because they have a
national on the bench.
Jurisdiction of the Court
The court has two types of jurisdictions; the contentious and advisory jurisdictions. Its capacity to decide
disputes between states, and its capacity to give advisory opinions when requested so to do by particular
qualified entities. Before going into details, Under its contentious jurisdiction, only States may appear
before the Court to argue a case. With regard to the advisory jurisdiction of the Court, UN organs and
specialized agencies are entitled formally to request the opinion of the ICJ regarding clarification of
disputed words, phrases, or meanings contained usually in a legal instrument. This implies that States
cannot seek an advisory opinion from the Court directly, but can do so through the organs of the UN or its
specialized agencies, while the latter also cannot appear as parties to contentious cases before the Court.
THE CONTENTIOUS JURISDICTION OF THE COURT
Only states may be parties in contentious proceedings before the court Article 34 of the State of the ICJ.
A member state of the UN is automatically bound by the ICJ Statute. However, this does not imply that
the State has therefore given its consent to the ICJ to try cases involving it. Jurisdiction in contentious
proceedings is dependent on the consent of states and the admissibility of the issue. The consent of a state
to confer jurisdiction as provided by Article 36 of the Statute of the ICJ may be through;
a. A special agreement to do so (compromis):
Here, a special agreement is drawn up by the parties to a case after an issue has arisen between them, to
submit the issue to the ICJ. Examples of cases where the ICJ exercised jurisdiction based on the special
agreement include Hungary v. Slovakia (the Case Concerning the Gabčíkova-Nagymaros Project)

b. Unilateral consent
Since consent is so important, a state that has not consented or in this sense made the declaration to
submit jurisdiction to the court would not be bound by it and as such a party cannot sue said state before
the court and neither can said state sue another state before the court. Unlike the special agreement, it is
possible that state may accept the jurisdiction of the Court after proceedings have been instituted against
it; such acceptance may take the form of an express statement. One party may have made the declaration
but the other party may have not and as such not obliged to take the dispute before the court. In such a
case, it possible for that party that was had not made the declaration to do so after the proceedings has
been instituted against it. France has don this in 2 cases Congo v France and Djibouti v France. This has
also been answered by the Corfu channel case where the court explained that consent to confer
jurisdiction on the court can be through the compromis between the two states or through separate and
successive acts.
Consent it must be noted may be express (through the declaration, agreement or treaty) or the consent
may be implied which is termed as forum prorogatum. Here consent in acceptance of jurisdiction is more
implied than explicit, and it is often the applicant that must claim and prove that the defendant, by taking
certain steps after receiving notice of the case against it in the Court, has accepted the jurisdiction of the
Court. Thus for example if the defendant state defends the case on the merits without challenging the
jurisdiction of the Court The Corfu channel case. If a state is conferring jurisdiction on the court, forum
prorogatum, it must do so by taking some positive steps from which the court can unequivocally infer
acceptance of jurisdiction. So that where steps taken by States occasion doubt or indicate a contrary
intention, then the Court must decline jurisdiction. Also look at The Anglo-Iranian oil case UK
v Iran.

c. Advance agreement by treaty to confer jurisdiction on the Court;

This is where conventions or treaties in force provide that parties shall submit their disputes to the Court.
This mode is often described as the ‘compulsory’ clause of the Court, given that it is consent given in
advance by States, on a treaty basis e.g. in Bosnia & Herzegovina v Yugoslavia, the jurisdiction of the
ICJ was founded on Article IX of the 1948 UN Convention on the Prevention and Punishment of the
Crime of Genocide (the Genocide Convention). However, note that the fact that a treaty or convention in
force provides for referring a dispute to the ICJ does not necessarily mean that a dispute will, in fact, be
so referred by States when it arises. Much will depend on whether, when the dispute arises, it fits into the
scope determined by the treaty in question and whether the treaty itself can be said to be in ‘force’ at the
relevant time Liechtenstein v. Germany (The Certain Properties Case)

d. The Optional clause (the declaration);

Article 36(2) of the Statute of the ICJ provides that ‘the states parties to the present Statute may at any
time declare that they recognize as compulsory ipso facto and without special agreement, in relation to
any other state accepting the same obligation, the jurisdiction of the Court in all legal disputes concerning
a number of including interpretation among others. Article 36(3) adds up that the declarations may made
unconditionally or on condition of reciprocity on the part of several or certain states, or for a certain time.
Thus through the declaration and on the principle of reciprocity, states that made the declaration may
automatically institute proceedings against another state who has also made the declaration since that
state has also ipso facto without any special agreement conferred jurisdiction on the court. This
jurisdiction is seen as operating compulsorily in the even of a dispute with another state that has made the
declaration. This point is called the optional clause because States accept the jurisdiction of the Court on
an opt in, opt out basis, with regard to whatever disputes they deem fit and for a period of time to be
determined solely by that State. Under this mode, a State deposits with the UN Secretary-General a
declaration to the effect that it is accepting the jurisdiction of the Court. The declaration will normally
specify the types of dispute in respect of which the State accepts the Court’s jurisdiction, the period for
which the declaration will be operative and reservations on the extent of the court’s jurisdiction in relation
to that state. Accepting the jurisdiction of the Court through the optional clause is the only mode that the
ICJ Statute itself describes as compulsory. This is mainly because once a State deposits a declaration with
the UN Secretary-General, that State is automatically bound to accept the Court’s jurisdiction in respect
of disputes concerning all other States that might have made similar declarations. Hence, upon a dispute
arising, a State that has made a declaration can unilaterally bring a dispute to the Court against another
State that has also made a declaration Cameroon v Nigeria,
ADVISORY OPINION
In addition to its power to decide disputes between states (contentious jurisdiction), the Court also has a
power to give advisory opinions (advisory jurisdiction). Article 96 of the UN Charter provides that the
General Assembly or the Security Council may request the ICJ to give an advisory opinion on any legal
question. Other organs of the United Nations and specialized agencies, which may at any time be so
authorized by the General Assembly, may also request advisory opinions of the Court on legal questions
arising within the scope of their activities. This means that the advisory procedure of the court is open
solely open to the 6 organs of the UN and the 16 specialized agencies of the UN family. They must
concern an abstract legal question and not a particular dispute. When a request is filed, the Court invites
states and organizations which might provide useful information with an opportunity of presenting written
or oral statements. Otherwise the procedure is largely the same as in contentious proceedings.
In principle, Unlike judgments, advisory opinions are only consultative in character and therefore not
binding as such on the requesting bodies. Certain instruments or regulations can however provide in
advance that the advisory opinion shall be binding.
Some of the advisory opinions given by the court include inter alia, the Court has given advisory opinions
on the admission to UN membership Admissions case, the reparation for injuries suffered in the service
of the United Nations The Reparations case, the territorial status of South West Africa (Namibia),
Western Sahara Western Sahara case, judgments rendered by international administrative tribunals, the
expenses of certain UN operations, the applicability of the UN Headquarters Agreement, the applicability
of the Convention on the Privileges and Immunities of the UN, and most recently, the legality of nuclear
weapons.

NATIONALITY & PERSONAL JURISDICTION

Nationality refers to a legal bond having as its basis a social fact of attachment, a genuine connection of
existence, interest, together with the existence of a reciprocal rights and duties The Nottebohm case
(Lichtenstein v Guatemala). It refers to the status of belonging to a state for certain purposes of
international law. As a general rule, states are at liberty to determine by its own legislation rules relating
to acquisition of nationality and the mode through which it may be acquired granted these rules are in
conformity with certain general principles of international law Article 1 of the 1930 Hague convention
on the conflict of nationality laws and also in the Nottebohm case.
Modes of Acquisition of Nationality
a. Acquisition by Birth
All laws allow for acquisition by birth. Two principles operate by this mode
i. Jus sanguinis: this refers to nationality acquired by descent i.e. being born of parents
grandparents who are nationals of that state irrespective of where you were born. Some countries
allow for one generation only (parents) e.g. Britain whilst other countries allow for 2 generations
(parents and grandparents) for example Ghana Article 6(2) of the constitution. Some states also
distinguish between legitimate and illegitimate children e.g. in Belgium, nationality is only for
legitimate children whereas some states also do no distinguish between legitimate and illegitimate
children e.g. France national code provides French citizenship whether legitimate or natural so
long as at least one of the child’s parent is French
ii. Jus soli: this refers to the grant of nationality to a person by virtue of the person being born
within the territory of a state e.g. America. Because of abuse, most states have abolished jus soli
and those who haven’t have added some conditions to it before it confers nationality. The
territory of the state includes the ships and aircraft registered under the flag of the state and as
such birth on them may fall under the jus soli.
 b. By marriage
The internal laws of some states confer nationality on a person by virtue of the person marrying a national
of the state e.g. Article 7 of the constitution allows for acquisition of citizenship in Ghana by marriage.
Formerly, once a woman marries the national of another country, she automatically loses her nationality
and assumes that of her husband however, with thinking regarding to equality of sexes etc., this law has
been rendered bad and outmoded Convention on the nationality of married women 1975.
c. Naturalization
This is the voluntary admission to citizenship of a foreign national. Usually, certain requirements must be
satisfied before naturalization can be granted. For instance, most countries require a minimum period of
residence, knowledge of the language and good character of the applicant Section 13 and 14 of the
Citizenship Act of Ghana. The grant must also conform to generally accepted international law principles
to be recognized by other states and the international community as a whole Nottebohm case.
d. Adoption
Explained as the voluntary acceptance of the child of other parents to be the same as ones own child.
Most state legislation recognize that an adopted minor and in Ghana’s case not more than 16years Article
6(4) of the constitution, acquires the nationality of the adoptive parents in accordance with the
requirements of the state laws
There are also other modes of granting nationality like finding a lost child below a certain age, honorary
citizenship etc.
LOSS OF NATIONALITY
Just as a state has the right to determine who its citizens are, it also has the right to determine how this
nationality can be lost provided it conforms with the rules of international law. Nationality can be lost
through;
a. Renunciation of citizenship: the nationality legislation of states provide for voluntary
renunciation of that states nationality by its citizens. In Ghana, Section 17 of the Citizens Act
caters for this
b. Acquisition of new nationality: a person acquiring a foreign nationality or taking an oath of
allegiance to another state may automatically loose his nationality. This mostly occurs in states
that do not recognize dual citizenship.
c. Deprivation of citizenship: this mostly occurs with naturalization or acquisition by marriage. If
there is evidence that the registration of certificate of naturalization or marriage was obtained by
means of fraud or misrepresentation or concealment of some material fact. In situations where the
person has lost his former nationality, it may lead to the person becoming stateless.

PUT TOGETHER BY
GODSON BONNEY