PIL Notes

Sanctions

CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF
AGGRESSION

Article 39

The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of
aggression and shall make recommendations, or decide what measures shall be taken in accordance with
Articles 41 and 42, to maintain or restore international peace and security.

Article 40

In order to prevent an aggravation of the situation, the Security Council may, before making the
recommendations or deciding upon the measures provided for in Article 39, call upon the parties concerned
to comply with such provisional measures as it deems necessary or desirable. Such provisional measures shall
be without prejudice to the rights, claims, or position of the parties concerned. The Security Council shall
duly take account of failure to comply with such provisional measures.

Article 41

The Security Council may decide what measures not involving the use of armed force are to be employed to
give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures.
These may include complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of diplomatic relations.

Article 42

Should the Security Council consider that measures provided for in Article 41 would be inadequate or have
proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to maintain
or restore international peace and security. Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United Nations.

Sanctions

1. Sanctions by States: Individually; by use of force in Self-defense (but proportionate force to be used)

2. Collective Sanctions: UN charter Chapter-VII- economic and military

◦ Economic: South Rhodesia in 1966; South Africa in 1977; Iraq in 1990; Libya in 1992; Yugoslavia in 1992;
Rwanda in 1994; Sierra Leone in 1997

◦ Military: Korean crisis in 1950; Gulf crisis in 1990-91; Somalia in 1992; Rwanda in 1994

Basis of International Law

• Theory of Consent
• Auto-limitation Theory
• Principle of Pacta Sunt Servanda
 • Theory of Fundamental Rights

Historically, there are two main approaches to international law:

– Natural law, which can be thought of as the idea that power of law does not come from voice of authority.
In contrast positivisim says the authority is what makes the law the law. Natural law says there is a higher
reason why the law is the law (e.g morality, universal principles, religious, etc.). Under natural law, horrific
immoral laws would not be valid even if they came from a legitimate authority.
The application of these approaches goes back 2000 years. Natural law finds its origins in ancient Rome and
Cicero the philosopher. Thomas Aquinas examined source of the aw’s legitimacy; according to him natural
law is God’s natural law.
A modern definition explores how natural law is universally applicable with rules derived from reason; a
doctrine that human affairs should be governed by ethical principles understood by reason.

Other notable contributors to the historical development of ‘natural law’ include Hugo Grotius – philosopher
from Dutch Republic, who is often regarded as the father of international law. His view was that source of
international law is oriented towards natural law. He argued that even if we reject theological basis of
natural law, the ideas are sufficiently evident from reason to allow us to follow them. In the formation of
natural law in the early years, states were not exclusive subject of international law and non state actors
were able to participate. The later positivist doctrine removed the rights and obligations of individuals from
international law.

In the early 20th century positivism grew and naturalist law shrunk.
– Contributions from Jeremy Bentham, 1800s and the principles of moral and legislation. His work ushers in
end to natural law. He defined international law as concerned transactions between sovereigns and divided
international law into two categories: public and private, the former referring to states and the latter to
individuals.

We can describe positivism in general as: paradigm holds international law based on state consent. This
would be created in contractual like fashion between states. For many years a related idea was popular: that
only states are subjects of international law. After WWII, individuals were decided to have rights and
obligations under international law (e.g. Nuremberg trials, crimes against humanity, genocide, etc.).

There are 3 key assumptions of positivism as explanation for law’s legitimacy: positive declaration i.e. law
must be expressed; IL is created by sovereign states which are the subject of international law; it holds that
law is effective even if it is unjust when measured against some moral standard ie there is no necessary
conformity of international law to morality.

Some additional thoughts to consider:

-jus cogens. A peremptory norm. Is a fundamental principle of international law which is accepted by
the international community of states as a norm from which no derogation is ever permitted.
-how can jus cogens exist in the context of positivism. States are bound by jus cogens norms, but
positivism suggests laws can only exist pursuant to some sort of authoritative body. There is an
apparent disconnect.
– Establishment of UN a new era of multilateral law making began.
Natural law would understand international law as the source being a validity that comes from a system of
norms such as reason or morality. A natural law understanding would say that a law cannot be created by
states that contravenes jus cogens norms.

1. WHAT IS PUBLIC INTERNATIONAL LAW?

International law comprises a system of rules and principles that govern the international relations between
sovereign states and other institutional subjects of international law such as the United Nations, the Arab League
and the African Union. It operates alongside international diplomacy, politics and economics.

2. WHAT IS MEANT BY THE TERM “SOVEREIGNITY”?

Sovereignty is the exclusive right to exercise supreme political authority over a defined territory (land, airspace
and certain maritime areas such as the territorial sea) and the people within that territory. No other State can
have formal political authority within that State. Therefore, sovereignty is closely associated with the concept
of political independence.

During the period of Western colonial expansion new territories and islands were subject to claims of
sovereignty by discovery and occupation. Sovereignty could also be transferred to another State by conquest
(use of force) or by cession where the sovereignty over the territory would be ceded by treaty from one State to
another.
Since a State has sovereignty over its territory, the entry into its territory by the armed forces of another State
without consent is a prima facie breach of international law. Among the attributes of sovereignty is the right to
exclude foreigners from entering the territory, which is traditionally referred to as the right to exclude aliens.
Since a State has sovereignty within its territorial sea (with some exceptions such as the right of innocent passage
), it has the exclusive authority to exercise police power within its territory sea. For example, if foreign ships are
attacked by “pirates” in the territorial sea of a State, the only State that can exercise police power and arrest the
pirates in the territorial sea is the coastal State.

3. WHAT IS THE DIFFERENCE BETWEEN INTERNATIONAL LAW AND NATIONAL LAW?

National law is concerned primarily with the legal rights and duties of legal persons (individuals and companies)
within a body politic – the state or similar territorial entity.
National law commonly is derived from a legal superior (e.g. a parliament or person with legislative power),
recognised as legally competent by the society to whom the law is addressed (e.g. in a constitution), and in
situations where the governing power has both the authority and practical competence to make and enforce that
law.
International law comprises a system of rules and principles that govern the international relations between
sovereign states and other institutional subjects of international law such as the United Nations, the Arab League
and the African Union
It is concerned with the rights and duties of the states themselves. In their relations with each other, there is no
relationship of legal superiority. States are legal equals and the legal system, which regulates their actions
between themselves, must reflect this.
International law is a legal system must facilitate the interaction of these legal equals rather than control or
compel that national law exerts over its subjects
4. HOW WOULD YOU RESPOND TO THE CLAIM THAT PIL IS NOT REALLY LAW?
Of course, PIL is a law, when think about what ‘law’ is, and what its purpose is, there is not one measure and
not one perfect model. PIL might be more prescriptive and less permissive however, that does not mean that it
ceases to be law. The story of international law and the international legal system, like so many other legal
systems, is one of achievement and disappointment. So, in much the same way that we would not suggest that
the law of the UK is somehow ‘not law’ because it is currently proving impossible to control cross-border
internet crime, it does not necessarily follow that international law should be dismissed as a system of law
because there are international actors that seem determined to ignore it.

International law comprises a system of rules and principles that govern the international relations between
sovereign states and other institutional subjects of international law such as the United Nations, the Arab League
and the African Union. The rules of international law are created primarily by states, either for their own
purposes or as a means of facilitating and controlling the activities of other actors on the international plane.
Rules of international law cover almost every facet of inter-state and international activity. There are laws
regulating the use of the sea, outer space and Antarctica. There are rules governing international
telecommunications, postal services, the carriage of goods and passengers by air and the transfer of money.
International law is a primary tool for the conduct of international trade.
It is concerned with nationality, extradition, the use of armed force, human rights, protection of the environment,
the dignity of the individual and the security of nations.
In short, there is very little that is done in the international arena that is not regulated by international law.
International law is the vital mechanism without which an interdependent world could not function. In this
sense, international law facilitates the functioning of the international community, of which we are all a part and
on which we all depend.
Modern international law also seeks to control states by inhibiting or directing their conduct both in their
relations with other states (e.g. the law prohibiting the use of armed force to settle disputes) and in relation to
individuals, both individuals of other states (e.g. issues concerning the exercise of criminal jurisdiction) and its
own nationals (e.g. the law of human rights).
Nevertheless, there have been incidents in International Law where a state may decide to forfeit legality in favour
of self-interest, expediency or ‘humanity’, like the denial of procedural and substantive rights to those being
held in detention by the USA at Guantanamo Bay during the Bush Presidency, which constituted a violation of
the international law of human rights worthy. However, these incidents should be contrasted to
(1) the successful UN-led efforts to bring self-determination and then independence to East Timor in 2002,
(2) the ground breaking establishment and operation of the International Criminal Court responsible for
prosecuting individuals for violation of fundamental international human rights,
(3) the protection of civilian populations during the Libyan civil war of 2011 and
(4) the continuing impact of the International Court of Justice in regulating states’ use of the world’s oceans
and their natural resources.

The members of the international community recognise that there exists a body of rules binding upon them as
law. States believe international law exists. When Iraq invaded Kuwait in 1990, or earlier when Tanzania
invaded Uganda in 1978/79, the great majority of states regarded the action as ‘unlawful’, not merely ‘immoral’
or ‘unacceptable’.
(a) International law is practised on a daily basis in the Foreign Offices, national courts and other governmental
organs of states, as well as in international organisations such as the United Nations and the Organisation of
American States. These organisations and their members accept that they are ‘legally bound’ to behave in a
certain way and will pursue claims against each other alleging a ‘breach’ of international law.
(b The States –the most important of the subjects of international law – do not claim that they are above the law
or that international law does not bind them. When Iraq invaded Kuwait it did not claim that the law prohibiting
armed force did not apply to it or was irrelevant. Rather, Iraq argued that international law ‘justified’ its action;
in other words, that it was ‘legal’ by reference to some other rule of international law. This is powerful evidence
that states follow rules of international law as a matter of obligation, not simply as a matter of choice or morality.
If this were not so, there would be no need for states to justify their action in legal terms when they departed
from a legal norm.
(c) The majority of international legal rules are consistently obeyed. Of course, there will be occasions when the
law is ignored or flouted, just as there will be murder and theft in national law. The occasions when a state
disregards its treaty or customary law obligations are but a small fraction of the occasions on which those
obligations are observed.
(d) It is a function of all legal systems to resolve disputed questions of fact and law. International law does this
and, because it cannot not be called a law because it only has a limited number of developed legal institutions.
The well-established European Court of Human Rights, the War Crimes Tribunals for Bosnia, Rwanda and
Somalia and the International Criminal Court are good examples.
It is sometimes said that international law is not "true" law becaus eit is not generally enforceable. For example,
no formal enforcement action taken against the USA after its illegal invasion of Grenada and no formal
condemnation of Israel for invading Lebanon in 2006. Unlike national legal systems, were it is assumed that the
law will be enforced. However, this argument could be considered as flawed as the system of law does not
depend on the chances of effective enforcement. Secondly, it is not true that international law is not enforceable
or effective.
While international law has never been wholly dependent on a system of institutionalised enforcement, the
absence of a ‘police force’ or compulsory court of general competence does not mean that international law is
impotent.

It would be a mistake to conclude that international law is a perfect system. There is much that could be reformed
and enhanced. There is a general lack of institutions; the content of the rules of international law can be uncertain;
states may elect to ignore international law when their vital interests are at stake; states are able to violate basic
rules, such as the prohibition of violence without fear of being coerced.

Week 2

WORKING OF THE INTERNATIONAL LEGAL SYSTEM

The international legal system is the foundation for the conduct of international relations. It is this system that
regulates state actions under international law. The principal subjects of international law are states, rather than
individuals as they are under municipal law.

The International Court of Justice acknowledged in the Reparation for Injuries case that types of
international legal personality other than statehood could exist and that the past half century has seen a
significant expansion of the subjects of international law. Apart from states, international legal personality is
also possessed by international organisations and, in some circumstance, human beings. In addition, non-
governmental organisations and national liberation movements have also been said to possess international legal
personality.

Since 1945 the international legal system has been dominated by the United Nations and the structures that were
established as part of that organisation. While the UN has been the object of significant criticism, it has
nevertheless played a pivotal role both in the progressive development and codification of international law.
Participants in the International Legal System
- States
- International Organizations
- Individuals

The Principles of the International Legal System

- The Prohibition on the Threat or Use of Force
- The Duty to Settle Disputes Peacefully
- The Duty of Non-Intervention
- The Duty to Co-Operate
- The Principle of Equal Rights and Self-Determination of Peoples
- The Principle of Sovereign Equality of States
- The Principle of Good Faith

GRANT COHEN- RETHINKING THE DOCTRINE OF SOURCES

Harlan Grant Cohen identifies a paradox with the formal sources of International Law (Note: Formal/ Modern
Sources always means Article 38 of the statute of ICJ). The paradox is as follows – Despite our reliance on
formal sources in identifying modern international law, there are numerous instances of non-compliance.
Research shows that, states that are most likely to sign and ratify human right treaties (remember treaties are a
source of identifying international law) are most likely to violate them; Despite many instances of non-
compliance with international law, International legal scholars consistently argue the existence of international
law.

The paradox is that, despite the belief among states that International law exists, there is heavy non-compliance
with international legal norms. Professor Cohen attempts to reconcile/solve the paradox by introducing a new
theory/process/ methodology of identifying international law.

His methodology relies upon the usage of doctrine of Opinio Juris (Psychological belief by a state that a rule is
a legal obligation and mandates compliance.) in solving the above paradox. If opinio-Juris is the psychological
belief that a particular rule is an international legal obligation, then the question is how do you identify
‘psychological belief’ of a state? The answer is quite simple- you identify if such a ‘rule’ has been internalized.
Evidence of a rule being internalized can be gathered by looking at whether domestic legislation of a state, court
orders, administrative actions of a state give recognition to the rule.

(The above Para is crucial in understanding the central argument of the paper. Understand the logical flow here:
Opinio -juris à Means psychological belief that a rule is a legal obligationà how do you identify the
‘psychological belief of a state’à identify if the particular norm has been internalized to the point of norm
becoming an obligation)

Thus, the fundamental premise of Professor Cohen is that, if an international rule is internalized it is most likely
to encourage compliance amongst states and thus the paradox identified above is resolved. The doctrine of
opinio-juris would identify a new hierarchy of sources as opposed to formal sources. The new hierarchy
According to Professor Cohen would include:

1. Core International Law- Uncontested substantive norms. Include most basic and accepted norms of
international law. Violation of it would constitute an exception not an exemption. It consists of two different
kinds of customary norms deeply internalized within the international system
a. Process Values – It is formed by a process that propounds consistency, determinacy, predictability, fair
negotiation. Shows the states’ intent to be bound, apply enforcement mechanisms etc. (e.g. The rule that
a norm has to be universally internalized to become an international obligation)
b. Internalized Norms- Deeply internalized and Fundamental norms. (e.g. Jus Cogens, norms such as,
prohibitions on piracy, slavery and genocide, general principles such as pacta sunt servanda)
Jus Cogens: Means that, certain norms in international law has achieved the process of universal internalization.
Any derogation from such norms is not permissible in law.

2. Legitimated Rules- Legitimized rules: Treaties and customary rules that are backed by strong process value
a. Legitimated Treaties- E.g.- the Geneva Convention. It fulfills the Process Values, internalized, it exhibits
a level of pedigree, determinacy and seriousness that causes states to consider themselves legally bound.
b. Recognized Custom- state practice + opinion juris+ repeatedly stated as rules of CIL

3. Aspirational International Law- Will include norms that have not been internalized and are not backed by
process value. Aspirational international laws would be considered as moral obligations, which may or may not
be observed by states.

Relationship between Side-Headings and the Central Argument

1. The Modern doctrine of Sources: This section gives a very basic understanding of formal sources of
International law under Article 38 of the statute of the ICJ. Professor Cohen identifies that the formal
sources of International law are reflective of positivist understandings of international law.

2. Earlier Views on the Sources of International Law: This section provides a historical evolution of
international law. From a natural law perspective to a positivist dimension. The positivist dimension to
international law bought about the theme of consent amongst states. As a result, treaties and universal
norms started to gain more prominence.

3. Contemporary Challenges to positivist history: This section contains four sub-headings. Each sub-
heading focuses on how the current methods used to identify international law are not practical. It argues
that international law must move away from its positivist theme of consent of states, because with the
existing political structure amongst Sates, consent can be coerced or political. This section generally
focuses on how the world is changing. It focuses on the creation of a number of states, international
institutions which have also become subjects of international law. As a result of the changes in world
politics the current rules on identifying international law are not sustainable. This section builds the
argument on the need for new theory or methodology to identify international law. The new methodology
must account for the new global structure.

4. Changing rules of the game: This section contains methods or means to adopt new systems of
identifying international law. This section discusses two theories that would encourage state compliance
with international law in the absence of coercion: a. Harold Koh’s theory of transnational legal process
and b. Thomas Frank’s theory of law as legitimacy.

Theory of Transnational legal process- That international law is interpreted by states who interact in ‘law-
declaring platforms’ and eventually incorporate it in its domestic legal system. Therefore, the process of
interaction, interpretation and incorporation would determine state compliance. A Rule is internationalized
when state and non-state actors interact (NGO, Courts, state officials, etc.) and force interaction to ensure
interpretation of the rules that would govern them. This theory believes that more norms that are internalized,
more likely to influence state actions as it carries greater weight and authority.

Illustration: The law against slavery: Law against slavery has been deliberated and discussed in different fora
unto the point of it being internalized into the domestic laws of all civilize nations of the world. All nations in
the world will fundamentally agree that slavery is punishable without debate. Note that this consensus is
achieved without coercion or debate, the reason being that the norm is internalized. (See example on
international of the norm on prohibition of torture in the United states)
Thomas Frank’s theory of law as legitimacy: the theory is that relative compliance by a good number of states
to a particular norm will pull other states to comply with the norm. (this section contains other semantics of the
nature of a rule to be considered legitimate)

Illustration: Assume that 65% of the states recognize that prisoners cannot be subject to death penalty. It may
inspire compliance by other states provided that the international law prohibiting death penalty has evolved
through a process of determinacy, symbolic validation, coherence and adherence.

Notice that Cohen’s theory of identifying international law incorporates Hol Koh’s and Thomas Frank’s theory.
He uses Harold Koh’s theory to identify opinion-juris, while he uses Thomas Frank’s theory to create the concept
of process values.

A new doctrine of Sources: This section critiques the idea of using treaties to identify international law. Cohen
uses this section to club Harold Koh’s and Thomas Frank’s theory and identify a new hierarchy. In this section
Cohen puts forth his new hierarchy of sources.
Cohen basically brings out the flaws of the traditional hierarchy of sources of international and suggests an
alternative ‘new doctrine’ to better understand what exactly constitutes ‘law’ in international law. He doesn’t
believe sources (treaties, customs, etc.) should be considered law due to the poor effect it has on state behavior.

New Hierarchy- The New Doctrine of Sources

This new doctrine of sources may suggest an international law that is less broad than that suggested by some
international law advocates. Some of the often-violated rules referred to by international law sceptics may not
actually be international law. But by focusing on how rules are internalized by international actors, this new
doctrine also suggests a deeper, more powerful understanding of international law than is often discussed.

Hierarchy of the sources of international law is based on the degree of internalization and binding nature instead
of focusing on the presence of consent w.r.t treaty and custom.

More deeply internalized rules would be considered first in the hierarchy.

How would this new doctrine affect the following:

1. International law theory- Positive impact Alleviate the pressures created by the disconnect between IL
and actual practice. New doctrine shifts to focus on compliance rather than non-compliance. Focusses
on process.
2. Disputes between states- In International Dispute Resolution determination of opinion juris and norm
internalization would be the central inquiry. Need not have consistent state practice, allows ‘instant
custom’. W.r.t treaties- inquiry would focus on whether the treaty has become law through legitimate
process- look at pedigree, determinacy, seriousness of the process, intention to be bound. If, however,
the treaty provision seems too vague, or the process behind it too thin to be treated as law in and of itself,
the court or tribunal will instead turn to the analysis it would perform in the absence of a treaty, searching
instead for evidence of internalized norms and opinio juris.
3. The direction of state action- it might seem difficult to not rely on treaties for clear answers when
applying the new doctrine. However, treaties are already sometimes vague and possess uncertain
language. Therefore the inquiry lies on understanding the process of norm internalization. The new
doctrine would also encourage both those advising states and those acting on a state’s behalf to see their
actions as part of the process of international law-making. Where the law on an issue is still only
crystallizing, a state will have to consider the effect its actions will have on how that law develops.
4. The legislation of new international rights- The effects of a new treaty enshrining new rights will have
to be considered carefully. Where consensus is strong and a treaty backed by strong Process Values is
possible, the new treaty can become a powerful tool in advancing those rights. Enshrined in a Legitimated
Treaty, the new right would be part of international law. Where Process Values and consensus are
lacking, the treaty may not yet be international law. Nonetheless, such a treaty can provide a powerful
focal point for the internalization of a new norm.
THE UNITED NATIONS CHARTER AS THE CONSTITUTION

A “Constitutional Moment”
- The drafting of the Charter was a true “constitutional moment in the history of international law.
- The will of the drafters firmly to establish a new world order in which international peace and security
would be safeguarded, and friendly relations among nations promoted.
- The charter partly reflects constitutional principles which were in force long before the Charter was
drafted. By embracing or incorporating them, the Charter has also confirmed them- given them a place
in the new order.
System of Governance
- Minimum quality of any constitutional instrument to provide for the performance of basic functions of
governance. Making and applying the law and adjudicating legal claims.
- Charter includes express provisions relating to legislation, application of law, and adjudication.
- Chapter VII of the Charter, right of the Security Council to enact “secondary law”
- Security council is not only the most important law-making body of the United Nations, but also the
central executive agent. Article 43 envisages a strong executive element.
- Some administrative tasks are allotted to the General Assembly, Economic and Social Council
(ECOSOC), and the Trusteeship Council.
- The central role of the Security Council in the U.N. “system of governance” does not allow us to speak
of true separation of powers in the organization.
- The Charter assigns different powers and tasks to different organs and establishes, to some degree, a
system of checks and balances.
Definition of Membership
- Generally, a constitution defines the members of the respective community, either explicitly or tacitly
by reference to inherited and unchallenged rules. Chapter II of the Charter sets out rules regarding the
acquisition, suspension and loss of membership in the organization.
Hierarchy of Norms
- Any constitution establishes a hierarchy of norms. The Charter clearly gives expression to such a
hierarchical model: “in the event of a conflict… [the] obligations under the present Charter shall prevail”
- The precedence of the Charter has been recognized in multilateral treaties and General Assembly
resolutions, as well as in draft articles adopted by the International Law Commission.
- Lockerbie case. ICJ emphasized the above point.
Eternity and Amendment
- Another distinguishing quality of a constitution is its claim to be valid regardless of the passing of time.
Every constitution aspires to eternity. The Charter, too, makes such a claim. It only provides for
amendment, not for termination.
- Article 108 and 109, amendments to the Charter come into force for all U.N. members when they have
been adopted by two-third majority of the General Assembly, or the General Conference, respectively
and ratified by the two thirds of the member states, including the permanent members of the Security
Council.

INTERNATIONAL LAW AND JUSTICE

Multilateral treaties
International Law Commission
International Court of Justice
Tribunals
The International Criminal Court

Week 3

SOURCES OF INTERNATIONAL LAW

´Sources means ‘Origin’- they are the procedure or method by which it is created
´Sources of international law are those processes and instruments out of which the rules
and principles of international law are developed
´The internationally accepted classification of sources of international law is formulated in
Article 38 of the Statute of the International Court of Justice.
´Article 38(1) of the statute of ICJ provides a reflection of the sources of international law
´Article 38 did not expressly mention ‘sources' but it is usually invoked as sources of
international law.
´Sources of international law can be characterized as ‘formal' and ‘material' sources,
though the characterisation is not by hierarchy but for clarification, therefore, Article
38(1)(a-c),that is, conventions or treaties ,custom and general principles are formal sources
whereas Article 38(1)(d) that is, judicial decisions and juristic teachings are ‘material
sources'.
´Formal sources confer upon rules an ‘obligatory character', while material sources
comprise the ‘actual content of the rules‘

There is no “Code of International Law”. International law has no Parliament and nothing that can really be
described as legislation. While there is an International Court of Justice and a range of specialised international
courts and tribunals, their jurisdiction is critically dependent upon the consent of States and they lack what
can properly be described as a compulsory jurisdiction of the kind possessed by national or municipal courts.

´Article 38(1) of the Statute of the International Court of Justice is widely recognised as the
most authoritative and complete statement as to the sources of international law.
´It provides that:
The Court, whose function is to decide in accordance with international law such disputes
as are submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most
highly qualified publicists of the various nations, as subsidiary means for the determination
of rules of law.

International Conventions

´Article 38 (1) (a) international conventions, whether general or particular,

establishing rules expressly recognized by the contesting states;
´Conventions- two kinds: General or Particular
´Treaties defined in Article 2 of the VCLT 1969;
‘A treaty is an agreement whereby two or more states, establish or seek
to establish relationship between them governed by international law’.
´Two kinds of Treaties: Law making Treaties & Treaty Contracts
´Sources are with reference to Law Making Treaties; which are general or particular in
nature
´Treaties are modern, deliberate, express agreements and in some ways superior to
customs
´In North Sea Continental Shelf Cases, 1969 between Holland and Denmark; held that
since West Germany not a signatory; therefore it is not bound by the provisions.

Treaties: Treaties are similar to contracts between countries; promises between States are exchanged,
finalized in writing, and signed. States may debate the interpretation or implementation of a treaty, but the
written provisions of a treaty are binding. Treaties can address any number of fields, such as trade relations,
or control of nuclear weapons, etc. They can be either bilateral (between two countries) or multilateral
(between many countries). They can have their own rules for enforcement, such as arbitration, or refer
enforcement concerns to another agency, such as the International Court of Justice. The rules concerning how
to decide disputes relating to treaties are even found in a treaty themselves—the Vienna Convention on the
Law of Treaties (United Nations, 1969).

Countries that do not sign and ratify a treaty are not bound by its provisions. Nevertheless, treaty provisions
may form the basis of an international custom in certain circumstances, provided that the provision in question
is capable of such generalization or is “of a fundamentally norm-creating character,” as the ICJ termed the
process in the North Sea Continental Shelf cases (1969). A treaty is based on the consent of the parties to it, is
binding, and must be executed in good faith. The concept known by the Latin formula pacta sunt
servanda (“agreements must be kept”) is arguably the oldest principle of international law. Without such a
rule, no international agreement would be binding or enforceable. Pacta sunt servanda is directly referred to
in many international agreements governing treaties, including the Vienna Convention on the Law of
Treaties (1969), which concerns treaties between states, and the Vienna Convention on the Law of Treaties
Between States and International Organizations or Between International Organizations (1986).
There is no prescribed form or procedure for making or concluding treaties. They may be drafted between
heads of state or between government departments. The most crucial element in the conclusion of a treaty is
the signalling of the state’s consent, which may be done by signature, an exchange of instruments, ratification,
or accession. Ratification is the usual method of declaring consent—unless the agreement is a low-level one,
in which case a signature is usually sufficient. Ratification procedures vary, depending on the country’s
constitutional structure.

INTERNATIONAL CUSTOMS

´Article 38 (1)(b): International custom, as evidence of a general practice accepted

as law;
Custom defined as:
´General Practice (State Practice): Antiquity/ long duration. Universality, Generality of
Practice
´Accepted as Law: Opinio Juris
´State Practice:
´Long Duration: Repetition, from ancient times, time immemorial; but Bin Cheng that
repetition not necessary (like sovereignty over air space and continental shelf)
´Uniformity and Consistency of Practice (Lotus case 1927- must be uniformly followed;
Asylum case 1950- Diplomatic Asylum not custom)
´Generality of Practice
´Opinio Juris et necessitates- by French jurist Francois Geny; meaning legal obligation to
act that way
Custom. The ICJ’s statute refers to “international custom, as evidence of a general practice accepted as law,”
as a second source of international law. Custom, whose importance reflects the decentralized nature of the
international system, involves two fundamental elements: the actual practice of states and the acceptance by
states of that practice as law. The actual practice of states (termed the “material fact”) covers various
elements, including the duration, consistency, repetition, and generality of a particular kind of behaviour by
states. All such elements are relevant in determining whether a practice may form the basis of a binding
international custom. The ICJ has required that practices amount to a “constant and uniform usage” or be
“extensive and virtually uniform” to be considered binding. Although all states may contribute to the
development of a new or modified custom, they are not all equal in the process. The major states generally
possess a greater significance in the establishment of customs. For example, during the 1960s the United States
and the Soviet Union played a far more crucial role in the development of customs relating to space law than
did the states that had little or no practice in this area. After a practice has been established, a second element
converts a mere usage into a binding custom—the practice must be accepted as opinio juris sive necessitatis
(Latin: “opinion that an act is necessary by rule of law”).

Once a practice becomes a custom, all states in the international community are bound by it whether or not
individual states have expressly consented—except in cases where a state has objected from the start of the
custom, a stringent test to demonstrate. A particular practice may be restricted to a specified group of states
(e.g., the Latin American states) or even to two states, in which cases the standard for acceptance as a custom
is generally high. Customs can develop from a generalizable treaty provision, and a binding customary rule and
a multilateral treaty provision on the same subject matter (e.g., the right to self-defence) may exist at the same
time.

General Principles of Law

´Article 38 (1) (c) the general principles of law recognized by civilized nations
´Solves problem of non-liquet
´G.P of law are relied for settlement of disputes mostly in relation to the procedures and
evidences
´Situations appearing in municipal systems; these are those rules which are repeated in
states in that kind of situation
´Reparations to be made for unlawful act, Res Judicata, Estoppel, lifting of corporate veil
´In Chorzow Factory Indemnity case 1928; reparations to be made; one who violates rules
is liable to pay reparation; in this case there was seizure of nitrate factory by Poland in
Upper Silesia. Permanent Court of International Justice declared that ‘it is a general
conception of law that every violation of an engagement involves an obligation to make
reparation’.
The Court also regarded it as: a principle of international law that the reparation of
a wrong may consist in an indemnity corresponding to the damage which the
nationals of the injured state have suffered as a result of the act which is contrary
to international law.
´In Corfu Channel case 1949, circumstantial evidence to be taken into consideration

´The question of res judicata was discussed in some detail in the Genocide Convention
(Bosnia and Herzegovina v. Serbia and Montenegro) case, where the issue focused on
the meaning of the 1996 decision of the Court rejecting preliminary objections to
jurisdiction. The Court emphasized that the principle ‘signifies that the decisions of the
Court are not only binding on the parties, but are final, in the sense that they cannot be
reopened by the parties as regards the issues that have been determined, save by
procedures, of an exceptional nature, specially laid down for that purpose.

´Principle of estoppel applied in Land, Island and Maritime Frontier Dispute and also in
El Salvador/ Honduras case (Application by Nicaragua for permission to intervene)
´In Barcelona Traction case, lifting of corporate veil was applied from domestic law to
international law. The company was registered under the Canadian law in Spain, but 88%
shareholders were Belgians, when the company was declared bankrupt by a Spanish court.
The claim was brought by Belgium to protect the interests of its nationals who were
shareholders in the company. The principle of lifting of corporate veil from domestic law was
applied under international law.

General Principles of Law. The third source of international law is based on the theory of “natural law,” which
argues that laws are a reflection of the instinctual belief that some acts are right while other acts are wrong.
“The general principles of law recognized by civilized nations” are certain legal beliefs and practices that are
common to all developed legal systems (United Nations, 1945).

For instance, most legal systems value “good faith,” that is, the concept that everyone intends to comply with
agreements they make. Courts in many countries will examine whether the parties to a case acted in good
faith, and take this issue into consideration when deciding a matter. The very fact that many different countries
take good faith into consideration in their domestic judicial systems indicates that “good faith” may be
considered a standard of international law. General principles are most useful as sources of law when no treaty
or CIL has conclusively addressed an issue.

JUDICIAL DECISIONS & JURISTIC WORKS

´Article 38 (1) (d): Subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary
means for the determination of rules of law.
´Subsidiary means for determinations, secondary sources
´Article 59: Decisions are binding between parties only; therefore no precedents

Judicial Decisions and Legal Scholarship. The last two sources of international law are considered “subsidiary
means for the determination of rules of law.” While these sources are not by themselves international law,
when coupled with evidence of international custom or general principles of law, they may help to prove the
existence of a particular rule of international law.

Especially influential are judicial decisions, both of the International Court of Justice (ICJ) and of national courts.
The ICJ, as the principal legal body of the United Nations, is considered an authoritative expounder of law, and
when the national courts of many countries begin accepting a certain principle as legal justification, this may
signal a developing acceptance of that principle on a wide basis such that it may be considered part of
international law.
Legal scholarship, on the other hand, is not really authoritative in itself, but may describe rules of law that are
widely followed around the world. Thus, articles and books by law professors can be consulted to find out what
international law is.

OTHER SOURCES

´Resolutions of International Organizations:

´In Nicaragua case, the court placed great reliance on UN Resolution 2625 (XXV), the
Declaration on Principles of International Law concerning Friendly Relations and
Cooperation among States
´In Nuclear Weapons Advisory Opinion, Court accepted Principle 21 of the Stockholm
Declaration 1972 and Principle 2 of the Rio Declaration 1992 have entered the corpus of
international law relating to the environment.
´In Gabcikovo-Nagymaros case, court accepted the principle of sustainable development
´International Comity/ State Papers
´Equity and Justice
´In Diversion of Water from the Meuse (1937), court decided on equitable use of
international rivers.
´Equity also applied in North Sea Continental Shelf cases

HIERARCHY OF SOURCES

´Jurists- Pellet, however, notes that while there is no formal hierarchy as between
conventions, custom and general principles, the International Court uses them in
successive order and ‘has organized a kind of complementarity between them’. Dupuy, in
his book argues that there is no hierarchy of sources. The ILC Study on Fragmentation,
however, agrees with writers proclaiming that ‘treaties generally enjoy priority over custom
and particular treaties over general treaties’,
´As a general rule, that which is later in time will have priority. Treaties are usually
formulated to replace or codify existing custom, while treaties in turn may themselves fall
out of use and be replaced by new customary rules.
´There is in addition a principle to the effect that a special rule prevails over a general
rule (lex specialis derogat legi generali), so that, for example, treaty rules between states as
lex specialis would have priority as against general rules of treaty or customary law
between the same states, although not if the general rule in question was one of jus
cogens.
Importance of Customs:
´Customs are dynamic process of law creation and important than treaties because of
their universal application
´Customs are of value since they are activated by spontaneous behavior and mirrors
contemporary concerns of life.
´Participation of all states encourages compliance
Customs diminishing:
´International Law has to contest with massive increase in pace and variety of state
activities and come to terms with many different cultural and political traditions

WHAT ARE THE SOURCES OF INTERNATIONAL LAW?

The sources for international law have been enumerated in Article 38(1) of the Statute of the International Court
of Justice. It provides that while the court is making its decision, it has to keep in mind that international law
stems from the following areas, since it is obliged to make decisions “in accordance with international law”.

(a) International conventions, whether general or particular, establishing rules expressly recognized by the
contesting states;
(b) International custom, as evidence of a general practice accepted as law;
(c) The general principles of law recognized by civilized nations;
(d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly qualified
publicists of the various nations, as subsidiary means for the determination of rules of law.
Keeping this Article in mind, let us take a detailed look at the different ways in which International Law is
generated:

1. Customary Law: The principle of Customary Law basically dictates that a dispute should be resolved by
referring to the Customs of the land, so that the customary practices of different nations are respected and
adhered to. However, the threshold for proving a law as customary is quite high, since it should have “evidence
of a general practice accepted as law”. In order to reach that threshold, the court must consider both the “material
facts” and the “opinio juris” of states.
· Material facts: This is concerned with the way in which the Customary law is applied in the Country
concerned. The duration for which the practice has subsisted, its consistency, the repetition of its use and the
generality of the practice are all considered subjectively in determining the authenticity and applicability of a
customary practice. However, each of those standards are exclusive to each other, and as reiterated by different
Courts in several cases, all of them need not be fulfilled in each case in order to determine the validity of the
practice. In some cases, like the Continental Shelf case, the Judges relied more on ideas of Justice and Equality
more that the other factors.
· Opinio Juris: This is concerned more with the Jurisprudence of the country whose custom is being considered.
Basically, this requirement is to ensure that even if a practice is customary, the Country carrying out that practice
must have been consciously enforcing/ allowing that practice. This has been seen in the Lotus case, where France
was arguing that since countries had abstained from instituting criminal proceedings in the past for the matter
that was in question, that is now the customary practice. However, the Court held that since there was no clear
evidence that the abstention was consciously made, it could not be held to be customary law.
Thus, customary law has two criteria – There should be clear evidence of the practice in question being followed,
and there should also be evidence to show that thecountry in question was consciously following it.

2. Treaties: This is another source for international law which plays a very big role. This is because the term
treaty means and includes Conventions, International Agreements, Pacts, General Acts, Charters, Statutes,
Declarations as well as Covenants. There are two kinds of treaties:
· Law making treaties: These treaties are ones that are intended to have general relevance as to the position
of law in particular fields. They are agreements by some or several states whereby they debate about different
fields in international law so as to broaden the scope and to give clarity to a particular subject. It is considered
as a source of law since it reflects the view of several states concerning particular topics. The Genocide
convention and the Antarctic Treaty are examples of this kind of a treaty.
· Treaty contracts: These are basically agreements between two countries, which are in the nature of a contract
between two parties; they are enforceable, and pertain mostly only to the contracting parties. However, it can be
regarded as a source of law in certain situations. For example, if a series of treaties between two or three countries
all have the same underlying principle, then that principle can be regarded as the custom of the land.

3. General principles of law: Another source of law mentioned in Article 38 are general principles of law.
This is a very important requirement as a source of law,since International law is not always very specific or
developed. Therefore, general principles of law would be very helpful in determining international law, since
there is already strong proof of its validity and its usage. Onesuch principle that was brought out in the Genocide
convention was the principle of Res Judicata, which was used to ensure that decisions of international courts are
final and binding. Another such principle is that of pacta sunt servanda, which means that international
agreements are binding on the parties who enter into them. Thus, they are a very important source of law.
4. Principles of Equity: Equity is a very important source if international law, since itallows courts to
sometimes look past the customary laws in order to make anequitable decision. This was observed in the
Continental Sea Shelf case, where the Court looked past the Customary drawing of nautical lines and instead
looked at the most equitable and just option available.
5. Judicial decisions: Article 38, mentioned above, lists judicial decisions as a subsidiary method of
determining law. Further, Article 59 says that judicial decisions will have no binding power of precedent.
However, judges sometimes interpret a whole concept that is then used by others as the binding law onpoint. In
this way, it can be used as a source of law. For example, in the Fisheries case, which set out the criteria for
determination of baselines for the measurement of territorial sea. This decision was later used by the 1958
Geneva Convention on the Territorial Sea and Contiguous Zone.
6. Writers: Writers also play a big part of determining sources of law since renowned work on jurisprudence
often cited by States in their presentation of claims, national law officials, the various international judicial and
arbitral bodies, and the judges of municipal courts.

WEEK 4

CUSTOMARY INTERNATIONAL LAW

Customary international law is an increasingly important source of international law and a product of state
practice. It is, however, much harder to determine what constitutes state practice than to determine a treaty rule.
This is because customary international law may not necessarily be written law and there is no one international
body that has the task of declaring what constitutes State Practice even though the ICJ has had to do this in a
number of cases.

Like many concepts of international law, there is unfortunately no comprehensive definition of customary
international law to which there is total agreement. The closest we have to a universal definition is “international
custom, as evidence of general practice of law” found in Article 38 of the Statute of the International Court of
Justice and adopted by nearly every country (or ‘state’) in the world as members of the United Nations.

Two elements for a practice to be considered as a Custom:

1. Objective element: The existence of State practice. In other words, the actions or omissions by the State
must support the custom; and

State practice can be seen in the actual actions performed by the State (acts or omissions),
statements made by authorized representatives in international fora or through national laws and judicial
decisions that deal with international relations.

“State practice” that is necessary for the formation of a CIL must be (1) consistent and uniform;
(2) generally accepted by States; and (3) of a certain duration.

2. Subjective element: Acceptance as law. In other words, States when performing a custom must do so
because they feel that they are legally bound to perform the custom. We call this concept Opinio juris.
STATE PRACTICE

• The actual practice engaged in by states constitutes the first essential.

• There are a number of points to be considered concerning the nature of a particular practice by states, including
its duration, consistency , repetition and generality
– 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.
– Consistency & Repetition: The basic rule as regards continuity and repetition was laid down in the Asylum
case decided by the International Court of Justice (ICJ) in 1950. The Court declared that a customary rule must
be ‘in accordance with a constant and uniform usage practised by the States in question.

•It is how states behave in practice that forms the basis of customary law, but evidence of what a state does
can be obtained from numerous sources. Obvious examples include administrative acts, legislation, decisions
of courts and activities on the international stage, for example treaty-making, etc.
•The obvious way to find out how countries are behaving is to read the newspapers, consult historical records,
listen to what governmental authorities are saying and peruse the many official publications. There are also
memoirs of various past leaders, official manuals on legal questions, diplomatic interchanges and the opinions
of national legal advisors. All these methods are valuable in seeking to determine actual state practice
•‘State practice covers any act or statements by a state from which views about customary law may be inferred.

OPINIO JURIS
•This is the psychological factor, the belief by a state that behaved in a certain way that it
was under a legal obligation to act that way. It is known in legal terminology as opinio
juris sive necessitatis and was first formulated by the French writer Franc¸ois G´eny.
•It differentiates legal custom from social usage
•The opinio juris, or belief that a 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.
•States will behave a certain way because they are convinced it is binding upon them to do
so.
•This approach was maintained by the Court in the Nicaragua case and express reference
was made to the North Sea Continental Shelf cases.
The Court noted that: for a new customary rule to be formed, not only must the acts
concerned amount to a settled practice, but they must be accompanied by the opinion juris
sive necessitatis. Either the States taking such action or other States in a position to react
to it, must have behaved so that their conduct is ‘evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need for such a belief,
i.e. the existence of a subjective element, is implicit in the very notion of the opinio juris
sive necessitatis.
•The issue connected with the opinio juris is regarding emergence of new customary law-
that if it calls for behaviour in accordance with law, how can new customary rules be created
since that obviously requires action different from or contrary to what until then is regarded
as law?
•Thus, one has to treat the matter in terms of a process whereby states behave in a certain
way in the belief that such behaviour is law or is becoming law. It will then depend upon
how other states react as to whether this process of legislation is accepted or rejected.
•Judge Tanaka, in his Dissenting Opinion in the North Sea Continental Shelf cases,
remarked that there was no other way than to ascertain the existence of opinio juris from
the fact of the external existence of a certain custom and its necessity felt in the international
community.
•There has to be an aspect of legality about the behaviour and the acting state will have to
confirm that this is so, so that the international community can easily distinguish legal from
non-legal practices.

•The decision in the Anglo-Norwegian Fisheries case may appear to suggest that where a
state acts contrary to an established customary rule and other states accepts this, then that
state is to be treated as not bound by the original rule.
•Behaviour contrary to a custom contains within itself the seeds of a new rule and if it is
endorsed by other nations, the previous law will disappear and be replaced, or alternatively
there could be a period of time during which the two customs co-exist until one of them is
generally accepted, as was the position for many years with regard to the limits of the
territorial sea.
REGIONAL OR LOCAL CUSTOM

•Rules that have developed to bind only a set group of states, such as those in Latin America,
or indeed just two states.
•In the Asylum case, the International Court of Justice discussed the Colombian claim of
a regional or local custom peculiar to the Latin American states, which would validate
its position over the granting of asylum. The Court declared that the ‘party which relies on
a custom of this kind must prove that this custom is established in such a manner that it
has become binding on the other party’. It found that such a custom could not be proved
because of uncertain and contradictory evidence.
•In such cases, the standard of proof required, especially as regards the obligation accepted
by the party against whom the local custom is maintained, is higher than in cases where an
ordinary or general custom is alleged.
•Such local customs therefore depend upon a particular activity by one state being
accepted by the other state (or states) as an expression of a legal obligation or right.

•In the Right of Passage over Indian Territory case, Portugal claimed that there existed
a right of passage over Indian territory as between the Portuguese enclaves, and this was
upheld by the International Court of Justice over India’s objections that no local custom
could be established between only two states. The Court declared that it was satisfied that
there had in the past existed a constant and uniform practice allowing free passage and that
the ‘practice was accepted as law by the parties and has given rise to a right and a correlative
obligation.

JUS COGENS

•Rules of jus cogens are substantive rules recognised to be of a higher status.

•Article 53 of the Vienna Convention on the Law of Treaties, 1969, provides that a treaty will
be void ‘if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law’.
•Further, by article 64, if a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates.
•This rule (jus cogens) will also apply in the context of customary rules so that no derogation
would be permitted to such norms by way of local or special custom.
•Such a peremptory norm is defined by the Convention as one ‘accepted and recognised 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’.
•The concept of jus cogens is based upon an acceptance of fundamental and superior values
within the system and in some respects is akin to the notion of public order or public policy
in domestic legal orders.

ERGA OMNES

•An erga omnes obligation is an obligation that every state has toward the entire
international community as a whole. The nature of the rules creating erga omnes rules is
such that any state has the right to complain of a breach by another state of said rule,
because every state has an interest in the protection of the rules that generate erga
omnes obligations. For example, a state does not need to be directly or indirectly involved in
a case of genocide in order to be able to complain about it.
•The concept has primarily a procedural focus.
•‘All states can be held to have a legal interest in their protection; they are obligations erga
omnes’. Examples of such obligations included the outlawing of aggression and of genocide
and the protection from slavery and racial discrimination
•The International Court in the East Timor case stressed that the right of peoples to self-
determination ‘has an erga omnes character’, while reiterating in the Genocide Convention
(Bosnia v. Serbia) case that ‘the rights and obligations enshrined in the Convention are rights
and obligations erga omnes’
•A Jus Cogens rule is described in the Vienna Convention on the law of Treaties as “…a
norm accepted and 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.”
•A jus cogens rule creates an erga omnes obligation for states to comply with a rule. An erga
omnes obligation is therefore the consequence of a rule being characterized as jus cogens.
 CASE LAWS

Asylum Case:
The case concerned Haya de la Torre, a Peruvian, who was sought by his government after
an unsuccessful revolt. He was granted asylum by Colombia in its embassy in Lima, but Peru
refused to issue a safe conduct to permit Torre to leave the country. Colombia brought the
matter before the International Court of Justice and requested a decision recognizing that it
(Colombia) was competent to define Torre’s offence, as to whether it was criminal as Peru
maintained, or political, in which case asylum and a safe conduct could be allowed.
The Court, in characterising the nature of a customary rule, held that it had to constitute the
expression of a right appertaining to one state (Colombia) and a duty incumbent upon
another (Peru). However, the Court felt that in the Asylum litigation, state practices had been
so uncertain and contradictory as not to amount to a ‘constant and uniform usage’
regarding the unilateral qualification of the offence in question.

In the North Sea Continental Shelf Case, the ICJ held that for a customary rule to emerge it
needed:
• The objective element or State practice.
• Very widespread and representative participation in the convention, including States
whose interests were specially affected (i.e. generality); and
• Virtually uniform practice (i.e. consistent and uniform usage) undertaken in a manner
that demonstrates.
• A general recognition of the rule of law or legal obligation (i.e. opinio juries).
• The passage of a considerable period of time was unnecessary (i.e. duration) to form a
customary law.

Article 38 (1) (b) of the Statute of the International Court of Justice explains customary
international law as comprising of “a general practice and accepted as law”. The general
practice or state practice is discussed above. The ICJ, in its jurisprudence, has relied on, and
interpreted, Article 38 (1) (b) to include two elements that assist the Court to determines the
existence of an alleged customary international law- state practice and opinio juris (also known
as opinio juris sive necessitates).

Opinio Juris: the sense of legal obligation. In international law, acceptance of a practice as
sufficient to create legal obligations.

Cases to be referred

Lotus Case
Nicaragua v US
North Sea Continental Shelf Cases

Difference between 'jus cogens' and 'opinio juris'

Article 64 of the Vienna Convention on Law of Treaties is titles as Emergence of a new

peremptory norm of general international law (Jus Cogens). It says that: If a new peremptory
norm of general international law emerges, any existing treaty which is in conflict with that
norm becomes void and terminates. Jus Cogens refers to standards against which there are no
exceptions; this is usually referred to in the context of international law- such things as
prohibitions against genocide, torture, and slavery would be considered jus cogens. [Jus
Cogens = compelling law]

Opinio Juris is the belief that an action was obligatory under the law, such as a practice that a
person doesn't normally perform, but feels compelled to under the law- self-defence might be
an example. [Opinio Juris = an opinion of law or necessity]

Anglo Norwegian Fisheries Case (UK vs Norway)

The Court was asked to decide, amongst others, the validity, under international law, of the
methods used to delimit Norway’s territorial sea/ fisheries zone. We will not discuss the
technical aspects of the judgment relating to the delimitation, but focus on the Court’s
conclusions relating to customary international law.

Background to the case

The United Kingdom requested the court to decide if Norway had used a legally acceptable
method in drawing the baseline from which it measured its territorial sea. The United Kingdom
argued that customary international law did not allow the length of a baseline drawn across
a bay to be longer than ten miles. Norway argued that its delimitation method was consistent
with general principles of international law.

Findings of the Court

The formation of customary law

The Court referred to (1) positive State practice and (2) lack of contrary State practice as a
confirmation of an existing rule of customary international law. There was no mention
of opinio juris in this early judgment.

In the following passage, the Court considered expressed dissent by States regarding a
particular practice to be detrimental to the existence of an alleged general rule. Yet,
the Court did not examine further whether these States adopted a contrary practice because, for
example, (1) they were claiming an exception to the rule or (2) because they believed that the
said rule did not possess the character of customary law.

“In these circumstances, the Court deems it necessary to point out that although the ten-mile
rule has been adopted by certain States both in their national law and in their treaties and
conventions, and although certain arbitral decisions have applied it as between these States,
other States have adopted a different limit. Consequently, the ten-mile rule has not acquired
the authority of a general rule of international law.”

The persistent objector

The Court in its judgment held that even if a customary law rule existed on the aforementioned
ten-mile rule,
“…the ten-mile rule would appear to be inapplicable as against Norway inasmuch as she has
always opposed any attempt to apply it to the Norwegian coast.”
In this case, the Court appears to support the idea that an existing customary law rule would
not apply to a State if (1) it objected to the application of the rule to itself (2) at the initial stages
and (3) in a consistent manner.
Initial objection
The Court pointed out that the Norwegian Minister of Foreign Affairs, in 1870, stated that, “in
spite of the adoption in some treaties of the quite arbitrary distance of 10 sea miles, this distance
would not appear to me to have acquired the force of international law. Still less would it appear
to have any foundation in reality…” The Court held that “Language of this kind can only be
construed as the considered expression of a legal conception regarded by the Norwegian
Government as compatible with international law”. Thus, the Court held that Norway had
refused to accept the rule as regards to it in 1870.

Sustained objection
The Court also went on to hold that Norway had followed the principles of delimitation that it
considered a part of its system in a consistent and uninterrupted manner from 1869 until the
time of the dispute. In establishing consistent practice, the Court held that “…too much
importance need not be attached to the few uncertainties or contradictions, real or apparent,
which the United Kingdom Government claims to have discovered in Norwegian practice.”
No objection by other States
The Court held that the 10-mile rule did not form a part of the general law and, in any event,
could not bind Norway because of the latter’s objections. Next, the Court inquired whether the
Norwegian system of delimitation was nevertheless contrary to international law. To do so, the
Court relied on state practice once more. “The general toleration of foreign States with regard
to the Norwegian practice is an unchallenged fact. For a period of more than sixty years the
United Kingdom Government itself in no way contested it… The Court notes that in respect of
a situation which could only be strengthened with the passage of time, the United Kingdom
Government refrained from formulating reservations.”

Contrary State practice of Norway?

In this case, Norway adopted a contrary practice – a practice that was the subject of litigation.
However, interestingly, Norway was clear that it was not claiming an exception to the rule (i.e.
that its practice was not contrary to international law). It emphasized that its practice – even if
it was a deviation from the general practice – was in conformity with international law.
“In its (Norway’s) view, these rules of international law take into account the diversity of facts
and, therefore, concede that the drawing of base-lines must be adapted to the special conditions
obtaining in different regions. In its view, the system of delimitation applied in 1935, a system
characterized by the use of straight lines, does not therefore infringe the general law; it is an
adaptation rendered necessary by local conditions.” The Court held that the fact that this
consistent and sufficiently long practice took place without any objection to the practice from
other States (until the time of dispute) indicated that these States did not consider the
Norwegian system to be “contrary to international law”. “The notoriety of the facts, the general
toleration of the international community, Great Britain’s position in the North Sea, her own
interest in the question, and her prolonged abstention would in any case warrant Norway’s
enforcement of her system against the United Kingdom. The Court is thus led to conclude that
the method of straight lines, established in the Norwegian system, was imposed by the peculiar
geography of the Norwegian coast; that even before the dispute arose, this method had been
consolidated by a consistent and sufficiently long practice, in the face of which the attitude of
governments bears witness to the fact that they did not consider it to be contrary to international
law.”

Relationship between international and national law

The Court alluded to the relationship between national and international law in delimitation of
maritime boundaries. In delimitation cases, States “must be allowed the latitude necessary in
order to be able to adapt its delimitation to practical needs and local requirements…” The Court
would also consider “…certain economic interests peculiar to a region, the reality and
importance of which are clearly evidenced by a long usage.” However, while the act of
delimitation can be undertaken by the State, its legal validity depends on international law.
“The delimitation of sea areas has always an international aspect; it cannot be dependent merely
upon the will of the coastal State as expressed in its municipal law. Although it is true that the
act of delimitation is necessarily a unilateral act, because only the coastal State is competent to
undertake it, the validity of the delimitation with regard to other States depends upon
international law.”

Whaling in the Antarctic (Australia v. Japan: New Zealand Intervening)

Facts:
Recent advancing technology in the whaling industry had caused massive reductions in whale
populations, resulting in near-extinction for some whale species. Nations that participated in
the whaling industry aimed to fix this problem by entering into multilateral treaties to restrict
the killing of whales. When these treaties did not achieve significant results, the United States
called an international conference, the result of which was the International Convention for the
Regulation of Whaling (ICRW). The ICRW created the International Whaling Commission
(IWC), which was comprised of representatives from each nation that was a party to the treaty.
After environmental awareness began to grow, numerous anti-whaling countries ratified the
ICRW and joined the IWC. In 1982, the IWC imposed a general moratorium (temporary
prohibition) upon commercial whaling and later established a whale sanctuary. Japan cast the
only negative vote against these measures. The moratorium included two exceptions, one
allowing for aboriginal-subsistence whaling and the other allowing nations to grant licenses
for whaling for scientific-research purposes. Japan continued its whaling program, JARPA II,
which used lethal methods to catch whales, under the scientific-research exception. In May
2010, Australia sued Japan, claiming that JARPA II violated the moratorium. Australia’s and
Japan’s opposing arguments highlighted different interpretations of the goals and purpose of
the ICRW, as outlined in the Preamble, and the meaning of Article VIII, which provided for
the scientific-research exception and stated that whaling conducted under an Article VIII
license was not subject to the moratorium’s obligations. The Preamble of the ICRW further
indicated that the purpose of the ICRW was to ensure the conservation of whales while
permitting the sustainable exploitation of whales.

Claim by Australia
Under article 8 killing of whales can be permitted only when it is absolutely necessary i.e. it is
the only option left. International whaling commission had made a resolution to this effect that
states must consider alternative methods except for lethal methods when available. Australia
claims that resolution of the IWC have the force of customary international law to the extent
that it allows for the interpretation of Article 8. Resolution amounts to a consensus.

Decision:
The resolution is not binding. States have to consider it themselves. Japan has also objected to
the resolution so there is no consensus as to interpretation. It accepts Japan’s objection. That
as long as the states deems it to be necessary the killing of whales would be allowed for
scientific research. State in granting permission has to show that it is not arbitrary. Court to not
go into details but just see whether something was done. Court held that there was research
done to grant permission and hence it is allowed. Court can go into actual killing of whales.
The whales can be sold afterwards for funding the project. Japan claim that no alternative
means were available to fund the project this shows that project was both for commercial
purposes as well as scientific research and it goes against article 8 which allows only for
scientific research.

Claim by Japan
JARPA II which increased the permission from 400 to 850 (minke whales) and also added two
additional whales which shows that other whales were also killed which were not commercially
viable.

Decision:
Throughout the JARPA II only mink whales were killed which are the ones which are
commercially viable. Court looks into various other evidences and concludes that killing of
whales was in effect for commercial purposes. E.g. statements by officials etc.

Australia won on almost all counts, and by 12 votes to 4. The Court’s principal reasoning is
that while Japan’s whaling programme involved ‘scientific research,’ a concept that the Court
did not want to define with particular precision, it was still not conducted for the purposes of
scientific research, and thus violated Article VIII, paragraph 1, of the International Convention
for the Regulation of Whaling. The Court took a number of factors into account in making this
determination, including: decisions regarding the use of lethal methods; the scale of the
programme’s use of lethal sampling; the methodology used to select sample sizes; a
comparison of the target sample sizes and the actual take; the time frame associated with a
programme; the programme’s scientific output; and the degree to which a programme
coordinates its activities with related research projects. The determination in the Court’s view
required an objective standard of review, rather than a deferential one which would take the
state’s professed objectives at face value. It thus found that bearing in mind the design of
Japan’s programme, its minor scientific output etc., it was not set up for the purposes of
scientific research. In terms of the remedy, the Court ordered Japan to revoke existing whaling
permits and refrain from authorizing new ones under the current whaling programme.

Advisory Opinion on Namibia (South West Africa)

Legal consequences for states of the continued presence of South Africa in Namibia

Facts:
South Africa occupied Namibia (formerly South West Africa) where it instituted a system of
apartheid. In 1966, in response to apartheid, the United Nations General Assembly issued a
resolution stating that South Africa’s continued mandate from the League of Nations to
Namibia was terminated. The General Assembly concluded that South Africa breached the
mandate by instituting apartheid and was thus in Namibia illegally. South Africa ignored the
General Assembly’s resolution, however, and the United Nations Security Council considered
the situation. The Security Council reaffirmed the General Assembly’s resolution and stated
that South Africa’s continued presence in Namibia was illegal. South Africa remained
unresponsive to this resolution. The Security Council requested an advisory opinion from the
International Court of Justice on the following questions: “What are the legal consequences for
States of the continued presence of South Africa in Namibia, notwithstanding Security Council
resolution 276 (1970)?”
Issue:
Are mandates adopted by the United Nations binding upon all Member States so as to make
breaches or violations thereof result in a legal obligation on the part of the violator to rectify
the violation and upon other Member States to recognize the conduct as a violation and to
refuse to aid in such violation?

Decision:
Yes. Mandates adopted by the United Nations are binding upon all Member States, and
violations or breaches result in a legal obligation on the part, of the violator to rectify the
violation and upon the other Member States to recognize the conduct as a violation and to
refuse to aid in such violation. The Member States have assumed an obligation to keep intact
and preserve the rights of other States and the people in them. When a party to the Mandate
giving rise to this obligation fails to fulfil its own obligations under it, that party cannot be
recognized as retaining the rights that it claims to derive from the relationship.

The General Assembly found that South Africa was in material breach of the Mandate because
of deliberate and persistent violations of it by occupying Namibia. The Assembly has the right
to terminate the Mandate with respect to a violating Member State, which was accomplished
by resolution 2145 (XXI) in this case. The decisions and resolutions of the Security Council in
enforcing such termination are binding upon all Member States, regardless of how they voted
on the measure when adopted. South Africa is thus subject to the Mandate, the resolution
terminating it as to South Africa, and the enforcement procedures of the Security Council.
South Africa’s illegal action gives rise to an obligation to put the violative conduct to an end.
Mandates adopted by the United Nations are binding upon all Member States and violations or
breaches result in legal obligations on the part of the violator to rectify the violation, and upon
the other Member States to recognize the conduct as a violation and to refuse to aid in such
violation.

Analysis:
South Africa did not restore independence to Namibia despite agreeing to do so with the United
Nations. The General Assembly adopted a number of resolutions imposing mandatory
sanctions for enforcement. South Africa was "strongly condemned" for its actions.

Barcelona Traction Case (Belgium v. Spain)

Overview: In its judgment in the second phase of the case concerning the Barcelona Traction,
Light and Power Company, Limited (Belgium v. Spain), the Court rejected Belgium's claim by
fifteen votes to one. The claim, which was brought before the Court on 19 June 1962, arose
out of the adjudication in bankruptcy in Spain of Barcelona Traction, a company incorporated
in Canada. Its object was to seek reparation for damage alleged by Belgium to have been
sustained by Belgian nationals, shareholders in the company, as a result of acts said to be
contrary to international law committed towards the company by organs of the Spanish State.
The Court found that Belgium lacked jus standi to exercise diplomatic protection of
shareholders in a Canadian company with respect to measures taken against that company
in Spain.

Facts:
On behalf of Belgian nationals who had invested in a Canadian corporation, Belgium sued
Spain on the premise that Spain was responsible for acts in violation of international law that
had caused injury to the Canadian corporation and its Belgian shareholders.

Decision:
The International Court of Justice held that Belgium had no legal interest in the matter to
justify it bringing a claim. Although Belgian shareholders suffered if a wrong was done to the
company, it was only the company's rights that could have been infringed by Spain's actions.
It would only be if direct shareholder rights (such as to dividends) were affected, that the
state of the shareholders would have an independent right of action. It was a general rule of
international law that when an unlawful act was committed against a company, only the state
of incorporation of the company could sue, and because Canada had chosen not to, this was
the end. The idea of a "diplomatic protection" of shareholders was unsound because it would
create confusion and insecurity in economic relations as shares are 'widely scattered and
frequently change hands'. The court also said that a state is bound to give the same legal
protection to foreign investments and nationals, either for natural or legal persons, when it
admits them to its territory.

Legality of Threat or use of Nuclear Weapons (GENERAL ASSEMBLY REQUEST))

Overview: The General Assembly of the United Nations asked the Court to provide its legal
opinion on the following question “Is the threat or use of nuclear weapons in any
circumstances permitted under international law?” In 1993, two years previously, the World
Health Organization had asked the Court a similar question on the legality of the use nuclear
weapons under international law. The Court declined to answer because the Court held that
the World Health Organization did not have the competence to ask the Court that particular
question.

Questions before the Court:

The Court discussed two procedural questions:
(1) Did the Court have the competence to give an advisory opinion based on a request of
the General Assembly? In other words, did the General Assembly have the
competence to ask the Court for an advisory opinion on the above question?
(2) If yes, were there any reasons that would compel the Court to decline to exercise
its jurisdiction?

The Court also discussed five substantive questions:

(3) Did treaty or customary law authorize the use of nuclear weapons?
(4) Did treaty or customary law contain a “comprehensive and universal” prohibition on
the threat and use of nuclear weapons?
(5) Should the threat or use of nuclear weapons be compatible with international
humanitarian law and other undertakings of the law?
(6) Will the threat or use of nuclear weapons be lawful in self-defence in situations where
the very survival of the State is at stake?
(7) Is there an obligation on States to work towards nuclear disarmament?
Decision:
(1) Did the Court have the jurisdiction to give a reply to the request of the General
Assembly?
The Court concludes that it had the jurisdiction to respond to the question for the following
reasons:
Firstly, the Court says that it has the competence under Article 65 (1) of the Statute of the
ICJ to provide an advisory opinion, when it is requested by a “competent organ of the United
Nations”. Secondly, the General Assembly is a “competent organ” because it is authorized by
Article 96 (1) of the United Nations Charter to request an advisory opinion from the Court.
Thirdly, together with Articles 10, 11, and 13, Article 96(1) of the UN Charter gives the
General Assembly the competence to request an advisory opinion on “any legal question”.
Some states said that this particular question is not a legal question but a political
question. The Court reiterates that it has consistently held that the mere fact that a question
before the Court may also have “political dimensions” or “political consequences” will not
deprive the question of its legal character, or affect the competence of the Court to reply.
The Court concludes that this question is a legal question. In other words, it is “framed in
terms of the law and raising problems of international law…(which) are by their very nature
susceptible of a reply based on law”. Thus, the Court concludes it had the relevant
jurisdiction to respond to this question.

(2) Even if the Court had the relevant competence, should it use its discretion and refuse
to respond to the question?
The Court concludes that there are no “compelling reasons” to refuse to provide a response
to the advisory opinion. The Court agrees that even if it has the competence to give an
opinion, it can still refuse to respond to an advisory opinion based on the discretion it has
under Article 65 (1) of the Statute. The Court confirms that it had previously never exercised
its discretion under Article 65 (1) to refuse to answer a question. The Court says that only
“compelling reasons” could lead to such a refusal and that, in this situation, there are no
“compelling reasons” which would lead the Court to refuse.

(3) Did customary or treaty law authorize the use of nuclear weapons?
The court concludes that neither customary law, not treaty law, explicitly authorizes the use
of nuclear weapons. Yet, it highlights that explicit authorization is not required because the
illegality on the threat or use of nuclear weapons does not stem from the lack of specific
authorization, but on a specifically formulated prohibition.

(4) Did treaty or customary law prohibit the threat and use of nuclear weapons?
The Court concludes that there is no comprehensive and universal prohibition on the threat
or use of nuclear weapons either in treaty or customary law. In terms of treaty law, some
States argued that the use of nuclear weapons would violate the right to life and other treaty-
based human rights, prohibition on genocide, and rules relating to the protection of the
environment. The Court says that none of these treaties provide a “universal and
comprehensive” prohibition on the use of nuclear weapons. Then, the Court says that the
“most directly relevant applicable law” is the UN Charter provisions relating to the use of
force and those laws that govern armed conflict. However, it finds that both of these legal
regimes also do not expressly prohibit, nor permit, the use of nuclear weapons. The Court
finds that:
 a. Articles 2(4), 42, and 51 of the UN Charter that relates to the legality on the use of
force, is silent on the specific weapons that can be used when using force.
b. International humanitarian law treaties (part of those laws governing armed conflict),
including The Hague Convention IV of 1907 and the Geneva Protocol of 1925 have
been understood in State practice, as not covering nuclear weapons. Similarly, other
humanitarian law treaties governing weapons of mass destruction, like the Biological
and Chemical Weapons Conventions, also do not contain prohibitions on the use of
nuclear weapons.
c. The Court also points out that those treaties that specifically relate to nuclear
weapons only limit its use, but does not support a general prohibition.

In terms of customary law, the Court finds that the opinio juris on the prohibition of the use
of nuclear weapons differs amongst States, as reflected in the content and voting patterns of
General Assembly resolutions, their views on deterrence and the non-use of nuclear weapons
in the recent past. The Court concludes that there are no comprehensive and universal
prohibitions on the threat or use of nuclear weapons under treaty law or customary law.

(5) Even if international law does not explicitly prohibit the threat or use of nuclear
weapons, is their use regulated under international law?
The Court now goes a step further to examine if the threat or use of these weapons is
regulated under international law.

UN Charter: Court had established that the UN Charter did not permit or prohibit the use any
type of weapons. However, it finds that for threat or use of force in self-defence to be lawful
under Article 51 of the UN Charter, the use of nuclear weapons must be necessary and
proportionate to the armed attack against which self-defence is exercised. The Court says
that the use of nuclear weapons may be proportionate in certain circumstances

International humanitarian law: The Court goes on to hold that even if the threat or use of
nuclear weapons is lawful under the UN Charter (in other words, when it is necessary and
proportionate), it must still meet the requirements of laws regulating armed conflicts,
including international humanitarian law and principles relating to neutrality. The Court
finds that it cannot conclude that the recourse of nuclear weapons “would be illegal in any
circumstances “or if the use of nuclear weapons was inherently and totally incompatible
with international humanitarian law. Nevertheless, the Court considers that it does not have
sufficient elements to enable it to conclude with certainty that the use of nuclear weapons
would necessarily be at variance with the principles and rules of law applicable in armed
conflict in any circumstance. The Court also finds that it could not reach a conclusion on the
legality or illegality of the use of nuclear weapons in “an extreme case of self-defence”. The
Court highlights the “fundamental right of every State to survival” and holds that,
…in view of the present state of international law viewed as a whole… (and base on) the
elements of fact at its disposal, the Court is led to observe that it cannot reach a definitive
conclusion as to the legality (i.e. whether the threat or use of nuclear weapons would be lawful
or unlawful) of the use of nuclear weapons by a State in an extreme circumstance of self-
defence, in which, it’s very survival would be at stake.
The Court didn’t elaborate on what would constitute an extreme case of self-defence nor
address whether a State having nuclear weapons (a nuclear State) can use it in the defence
of another non-nuclear State when that second State’s very existence is threatened.

(7) Is there an obligation on States for nuclear disarmament?

The Court finds that there is an obligation “to pursue in good faith and bring to some
negotiations leading to disarmament.

Lockerbie Case (Libya v. United States)

Facts:
An airplane exploded over Scotland, killing many American citizens. The US and the UK traced
the bomb back to two Libyans. The Libyan government refused to extradite the Libyans for
trial. Libya argued that under the Convention for the Suppression of Unlawful Acts against
Civil Aviation (the Montreal Convention) (974 U.N.T.S. 177 (1971)), Libya could either
extradite or prosecute the suspects themselves. Libya chose to prosecute the suspects
themselves. The United States and the UK accused the Libyans of "Forum Shopping" and took
the case to the United Nations Security Council (UNSC). UNSC issued two resolutions (UNSC
Resolutions 731/748). These urged Libya to hand over the bombing suspects. UNSC also
embargoes arms sales to Libya, told member states to close offices of the Libyan
Airlines. Coercive powers are detailed in Chapter VII of the United Nations Charter.

Analysis:
How did the UNSC justify the resolutions?

Article 39 allows the UNSC to take enforcement actions to restore international peace. You
could argue that international terrorism is a breach of the peace. But how could you say that
Libya's exercising their rights under a multilateral treaty is a threat to the peace? Libya went
to the International Court of Justice to protest the UNSC resolutions. Libya claimed that it was
fully within its rights under the Montreal Convention to try the suspects in Libya and not have
to turn them over. The I.C.J. found that the UNSC resolutions were permissible, and the Libya
must hand over the suspects. Basically, the I.C.J. found that UNSC resolutions trumped
everything else, even multilateral treaties. Article 103 of the United Nations Charter says, "In
the event of a conflict between the obligations of the Members of the United Nations under
the present Charter and their obligations under any other international agreement, their
obligations under the present Charter shall prevail." Article 25 says that member States must
follow UNSC resolutions.

Holding:
The I.C.J. does not perform Judicial Review of UNSC decisions. They are binding and not
reviewable. If UNSC decisions were reviewable, it would not give the same sense of finality
that is required for them to be acted upon.

Does the court have the power to pronounce on the validity of a security council resolution?
Note: UN charter always prevails, so security council trumps the Montreal convention. By
making that pronouncement, the court recognized that it has the power to pronounce on the
legal validity of the security council. There was a strong dissent for this reason.

Prosecutor v Tadić
Facts:
For committing war crimes at a Serb-run concentration camp in Bosnia-Herzegovina, Tadić
was prosecuted in Court. The jurisdiction of the tribunal was however challenged by Tadić on
the ground that it exceeded the authority of the U.N. Security Council. This argument of Tadić
was dismissed by the trial court but Tadić appealed.

Issue:
Can plea against the International Tribunal jurisdiction be examined by the International
Tribunal based on the invalidity of its establishment by the Security Council?

Held:
Yes. Plea against the International Tribunal jurisdiction can be examined by the International
Tribunal based on the invalidity of its establishment by the Security Council. The criteria for
establishing an International Tribunal includes the establishment in accordance with the
proper international standards, the provision of guarantees of fairness, justice, and even-
handedness, in full conformity with internationally recognized human rights instruments.
Hence, a tribunal like the one created in this case must be endowed with primacy over
national courts.

Discussion:
The authority of the Security Council to establish a tribunal for the determination of a criminal
charge was attacked by Tadić. So long as it is “established by law”, the tribunal is authorized
to be established for the determination of these charges. The Council requires that it be “set
up by a competent organ in keeping with relevant legal procedures and that it observes the
requirements of procedural fairness”

The Case of The SS Lotus (France v. Turkey)

Overview: A collision occurred on the high seas between a French vessel and a Turkish vessel.
Victims were Turkish nationals and the alleged offender was French. Could Turkey exercise its
jurisdiction over this French national under international law?

Facts:
A collision occurred on the high seas between a French vessel – Lotus – and a Turkish vessel
– Boz-Kourt. The Boz-Kourt sank and killed eight Turkish nationals on board the Turkish vessel.
The 10 survivors of the Boz-Kourt (including its captain) were taken to Turkey on board the
Lotus. In Turkey, the officer on watch of the Lotus (Demons), and the captain of the Turkish
ship were charged with manslaughter. Demons, a French national, was sentenced to 80 days
of imprisonment and a fine. The French government protested, demanding the release of
Demons or the transfer of his case to the French Courts. Turkey and France agreed to refer
this dispute on the jurisdiction to the Permanent Court of International Justice (PCIJ).

Issues:
Did Turkey violate international law when Turkish courts exercised jurisdiction over a crime
committed by a French national, outside Turkey? If yes, should Turkey pay compensation to
France?

Decision:
Turkey, by instituting criminal proceedings against Demons, did not violate international law.

Relevant Findings of the Court:

Establishing Jurisdiction: Does Turkey need to support its assertion of jurisdiction using an
existing rule of international law or is the mere absence of a prohibition preventing the
exercise of jurisdiction enough? The first principle of the Lotus Case: A State cannot exercise
its jurisdiction outside its territory unless an international treaty or customary law permits
it to do so. This is what we called the first principle of the Lotus Case.

The second principle of the Lotus Case: Within its territory, a State may exercise its
jurisdiction, in any matter, even if there is no specific rule of international law permitting it to
do so. In these instances, States have a wide measure of discretion, which is only limited by
the prohibitive rules of international law.

Rules of International Law flow from the consent of states, therefore restrictions on states
can never be presumed. France has to show that such a violation of International Law exists,
rather than compelling Turkey to establish a ground for its national jurisdiction. France raised
three arguments to this effect, all of which fail—i.e. Turkey did not act in conflict with
principles of International Law because France failed to establish that any such principles
exist.

Territoriality is the first, and most solid basis of jurisdiction. There is a valid provision in the
Turkish Criminal code, which asserts extra-territorial application of Turkish law. But, the basis
of jurisdiction is actually the impact of the criminal behavior on Turkish territory (i.e. the
impact of the captain’s behavior on the ship which is Turkish territory). Which means, if the
death takes place on Turkish territory, the country has territorial jurisdiction (the ship is
Turkish, so the impact of the wrongful act was felt on Turkish territory.

Jurisdiction is territorial, but it doesn’t follow that a state cannot exercise that jurisdiction
with respect to events that occurred extra-territorially. E.g. If you shoot a gun across the
border, and kill someone on the other side, both states have jurisdiction over the crime, on a
territorial basis.

North Sea Continental Shelf Cases (Germany, Denmark and Netherlands)

Overview: The jurisprudence of the North Sea Continental Shelf Cases sets out the dual
requirement for the formation of customary international law: (1) State practice (the
objective element) and (2) opinio juris (the subjective element). In these cases,
the Court explained the criteria necessary to establish State practice. It highlighted that the
practices of those States whose interests were specially affected by the custom were
especially relevant in the formation of customary law. It also held that uniform and consistent
practice was necessary to demonstrate opinio juris – opinio juris is the belief that
State practice amounts to a legal obligation. The North Sea Continental Shelf Cases also
dispelled the myth that duration of the practice (i.e. the number of years) was an essential
factor in forming customary international law.

The case involved the delimitation of the continental shelf areas in the North Sea between
Germany and Denmark and Germany and Netherlands beyond the partial boundaries
previously agreed upon by these States. The parties requested the Court to decide the
principles and rules of international law that are applicable to the above delimitation because
the parties disagreed on the applicable principles or rules of delimitation. Netherlands and
Denmark relied on the principle of equidistance (the method of determining the boundaries
in such a way that every point in the boundary is equidistant from the nearest points of the
baselines from which the breath of the territorial sea of each State is measured). Germany
sought to get a decision in favour of the notion that the delimitation of the relevant
continental shelf was governed by the principle that each coastal state is entitled to a just and
equitable share (hereinafter called just and equitable principle/method). Contrary to
Denmark and Netherlands, Germany argued that the principle of equidistance was neither a
mandatory rule in delimitation of the continental shelf nor a rule of customary international
law that was binding on Germany. The Court was not asked to delimit because the parties
had already agreed to delimit the continental shelf as between their countries, by agreement,
after the determination of the Court on the applicable principles.

Facts of the Case:

Netherlands and Denmark had drawn partial boundary lines based on the equidistance
principle (A-B and C-D). An agreement on further prolongation of the boundary proved
difficult because Denmark and Netherlands wanted this prolongation to take place based on
the equidistance principle (B-E and D-E) whereas Germany was of the view that, together,
these two boundaries would produce an inequitable result for her. Germany stated that due
to its concave coastline, such a line would result in her losing out on her share of the
continental shelf based on proportionality to the length of its North Sea coastline. The Court
had to decide the principles and rules of international law applicable to this delimitation. In
doing so, the Court had to decide if the principles espoused by the parties were binding on
the parties either through treaty law or customary international law.

Questions before the Court:

Is Germany under a legal obligation to accept the equidistance-special circumstances
principle, contained in Article 6 of the Geneva Convention on the Continental Shelf of 1958,
either as a customary international law rule or on the basis of the Geneva Convention?

The Court’s Decision:

The use of the equidistance method had not crystallised into customary law and the method
was not obligatory for the delimitation of the areas in the North Sea related to the present
proceedings.

Relevant Findings of the Court:

Nature of the treaty obligation: Is the 1958 Geneva Convention, and in particular Article 6,
binding on Germany?

Article 6 of the Geneva Convention stated that unless the parties had already agreed on a
method for delimitation or unless special circumstances exist, the equidistance method
would apply. Germany had signed, but not ratified, the Geneva Convention, while
Netherlands and Denmark were parties to the Convention. The latter two States argued that
while Germany is not a party to the Convention (not having ratified it), she was still bound by
Article 6 of the Convention because:
• by conduct, by public statements and proclamations, and in other ways, the Republic
has unilaterally assumed the obligations of the Convention; or has manifested its
acceptance of the conventional regime; or has recognized it as being generally
applicable to the delimitation of continental shelf areas…
• the Federal Republic had held itself out as so assuming, accepting or recognizing, in
such a manner as to cause other States, and in particular Denmark and the
Netherlands, to rely on the attitude thus taken up” (the latter is called the principle of
estoppel).

The Court rejected the first argument. It said that only a ‘very definite very consistent course
of conduct on the part of a State would allow the Court to presume that the State had
somehow become bound by a treaty (by a means other than in the formal manner: i.e.
ratification) when the State was ‘at all times fully able and entitled to…’ accept the treaty
commitments in a formal manner. The Court held that Germany had not unilaterally assumed
obligations under the Convention. The court also took notice of the fact that even if Germany
ratified the treaty, she had the option of entering into a reservation on Article 6, following
which that particular article would no longer be applicable to Germany (in other words, even
if one were to assume that Germany had intended to become a party to the Convention, it
does not presuppose that it would have also undertaken those obligations contained in Article
6).

Note: The Vienna Convention on the Law of Treaties of 1969 (VCLT), which came into force in
1980, discusses in more detail treaty obligations of third States (those States who are not
parties to the treaty). It clearly stipulates that obligations arise for third States from a
provision of a treaty only if: (1) the actual parties to the treaty intended the provision to
create obligations for third States; and (2) third State expressly accept those obligations in
writing (Article 35 of the VCLT). The VCLT was not in force when the Court deliberated on this
case. However, as seen above, the Court’s position is consistent the VCLT.

The Court held that the existence of a situation of estoppel would have allowed Article 6 to
become binding on Germany – but held that Germany’s action did not support an argument
for estoppel. The Court also held that the mere fact that Germany may not have specifically
objected to the equidistance principle as contained in Article 6, is not sufficient to state that
the principle is now binding upon it.

In conclusion, the Court held that Germany had not acted in any manner so as to incur
obligations contained in Article 6 of the Geneva Convention. The equidistance–special
circumstances rule was not binding on Germany by way of treaty law.

Nature of the customary international law obligation: Is Germany bound by the provisions of
Article 6 of the Geneva Convention in so far as they reflect customary international law?

Netherlands and Denmark argued that Article 6 also reflected ‘the accepted rule of general
international law on the subject of continental shelf delimitation’ and that it existed
independently of the Convention. Therefore, they argued, Germany is bound by the subject
matter of Article 6 by way of customary international law. To decide if the equidistance
principle bound Germany by way of customary international law, the Court examined
1. The status of the principle contained in Article 6 as it stood when the Convention was
being drawn up; and
2. Its status after the Convention came into force.

What was the customary law status of Article 6 at the time of drafting the Convention?
The Court held that the principle of equidistance, as contained in Article 6 did not form a part
of existing or emerging customary international law at the time of drafting the Convention.
The Court supported this finding based on (1) the hesitation expressed by the drafters of the
Convention, the International Law Commission, on the inclusion of Article 6 into the
Convention and (2) the fact that reservations to Article 6 was permissible under the
Convention. The Court held:
“… Article 6 is one of those in respect of which, under the reservations article of the
Convention (Article 12) reservations may be made by any State on signing, ratifying or
acceding, – for speaking generally, it is a characteristic of purely conventional rules and
obligations that, in regard to them, some faculty of making unilateral reservations may, within
certain limits, be admitted; whereas this cannot be so in the case of general or customary law
rules and obligations which, by their very nature, must have equal force for all members of
the international community, and cannot therefore be the subject of any right of unilateral
exclusion exercisable at will by any one of them in its own favour…. The normal inference
would therefore be that any articles that do not figure among those excluded from the faculty
of reservation under Article 12, were not regarded as declaratory of previously existing or
emergent rules of law …”
Did the provisions in Article 6 on the equidistance principle attain the customary law status
after the Convention came into force?
The Court then examined whether the rule contained in Article 6 had become customary
international law after the Convention entered into force – either due the Convention itself
(i.e., if enough States had ratified the Convention in a manner so as to fulfil the criteria
specified below), or because of subsequent State practice (i.e. even if an adequate number of
States had not ratified the Convention, one could find sufficient State practice to meet the
criteria below). The Court held that Article 6 of the Convention had not attained a customary
law status.

For a customary rule to emerge the Court held that it needed: (1) very widespread and
representative participation in the Convention, including States whose interests were
specially affected (in this case, they were coastal States) (i.e. generality); and (2) virtually
uniform practice (i.e. consistent and uniform usage) undertaken in a manner that
demonstrates (3) a general recognition of the rule of law or legal obligation (i.e. opinio juries).
In the North Sea Continental Shelf cases the court held that the passage of a considerable
period of time was unnecessary (i.e. duration) for the formation of a customary law.

Widespread and representative participation

The Court held that the first criteria was not met. The number of ratifications and accessions
to the Convention (39 States) were not adequately representative or widespread.

Duration
The Court held that the duration taken for a customary law rule to emerge is not as important
as widespread and representative participation, uniform usage, and the existence of an opinio
juris. It held that:
“Although the passage of only a short period of time (in this case, 3 – 5 years) is not
necessarily, or of itself, a bar to the formation of a new rule of customary international law
on the basis of what was originally a purely conventional rule, an indispensable requirement
would be that within the period in question, short though it might be, State practice, including
that of States whose interests are specially affected, should have been both extensive and
virtually uniform in the sense of the provision invoked and should moreover have occurred in
such a way as to show a general recognition that a rule of law or legal obligation is involved.”

Opinio juris
Opinio juris is reflected in acts of States (Nicaragua Case) or in omissions (Lotus case), in so
far as those acts or omissions were done following a belief that the said State is obligated by
law to act or refrain from acting in a particular way.
The Court examined 15 cases where States had delimited their boundaries using the
equidistance method, after the Convention came into force. The Court concluded that even
if there were some State practice in favour of the equidistance principle, the Court could not
deduct the necessary opinio juris from this State practice. The North Sea Continental Shelf
Cases confirmed that both State practice (the objective element) and opinio juris (the
subjective element) are essential pre-requisites for the formation of a customary law rule.

This is consistent with Article 38 (1) (b) of the Statute of the ICJ. The Court explained the
concept of opinio juris and the difference between customs (i.e. habits) and customary law:
“Not only must the acts concerned amount to a settled practice, but they must also be such,
or be carried out in such a way, as to be evidence of a belief that this practice is rendered
obligatory by the existence of a rule of law requiring it. The need for such a belief, i.e., the
existence of a subjective element, is implicit in the very notion of the opinio juris sive
necessitatis. The States concerned must therefore feel that they are conforming to what
amounts to a legal obligation. The frequency, or even habitual character of the acts is not in
itself enough.

The Court concluded that the equidistance principle was not binding on Germany by way of
treaty or customary international law. In the case of the latter, the principle had not attained
a customary international law status at the time of the entry into force of the Geneva
Convention or thereafter. As such, the Court held that the use of the equidistance method is
not obligatory for the delimitation of the areas concerned in the present proceedings.

Nicaragua v. United States

Overview: This case was about military and paramilitary activities conducted by, or with the
assistance of, the United States against Nicaragua from 1981 to 1984.
Due to a United States’ multilateral treaty reservation, (the Vandenberg reservation), the
Court could not rely on the United Nations Charter and was compelled to base its findings in
relation to the use of force customary and general principles of international law. As a result,
the Nicaragua case developed a significant jurisprudence on customary international law
relating to (1) the use of force and non-intervention, (2) elements necessary to form
customary international law, and (3) the relationship between customary and treaty law.
Controversial aspects of the decision included (1) the Court’s methodology used to determine
that the principle of non-intervention had attained customary law status, (2) the Court’s
reliance on resolutions of the General Assembly as a source of opinio juris and (3) the Court’s
reliance on multilateral treaties to determine customary international law despite the
Vandenberg reservation.

Facts of the Case:

In July 1979, the Government of President Somoza was replaced by a government installed
by Frente Sandinista de Liberacion Nacional (FSLN). Supporters of the former Somoza
Government and former members of the National Guard opposed the new government. The
US – initially supportive of the new government – changed its attitude when, according to the
United States, it found that Nicaragua was providing logistical support and weapons to
guerrillas in El Salvador. In April 1981, the United States stopped its aid to Nicaragua and in
September 1981, according to Nicaragua, the United States “decided to plan and undertake
activities directed against Nicaragua”.

The armed activities against the new Government was carried out mainly by
(1) Fuerza Democratica Nicaragüense (FDN), which operated along the border with
Honduras, and (2) Alianza Revolucionaria Democratica (ARDE), which operated along the
border with Costa Rica. Initial US support to these groups fighting against the Nicaraguan
Government (called “contras”) was covert. Later, the United States officially acknowledged
its support (for example: In 1983, budgetary legislation enacted by the United States Congress
made specific provision for funds to be used by United States intelligence agencies for
supporting “directly or indirectly military or paramilitary operations in Nicaragua”). Nicaragua
also alleged that the United States is effectively in control of the contras, the United
States devised their strategy and directed their tactics, and that the contras were paid for and
directly controlled by the United States. Nicaragua also alleged that some attacks against
Nicaragua were carried out, directly, by the United States military – with the aim to overthrow
the Government of Nicaragua. Attacks against Nicaragua included the mining of Nicaraguan
ports, and other attacks on ports, oil installations, and a naval base. Nicaragua alleged
that aircrafts belonging to the United States flew over Nicaraguan territory to gather
intelligence, supply to the contras in the field, and to intimidate the population.

The United States did not appear before the ICJ at the merit stages, after refusing to accept
the ICJ’s jurisdiction to decide the case. The United States at the jurisdictional phase of the
hearing, however, stated that it relied on an inherent right of collective self-defence
guaranteed in Article 51 of the UN Charter when it provided “upon request proportionate and
appropriate assistance…” to Costa Rica, Honduras, and El Salvador in response to Nicaragua’s
acts of aggression against those countries.

Questions before the Court:

1. Was the Court competent to give its determination based on customary international
law when there was a multilateral treaty reservation?
2. What is the relationship between treaty and customary international law?
3. What are the elements necessary to form customary international law?
4. What is the customary international law status of the principle of non-intervention?

Relevant findings of the Court:

(1) The Court held that multilateral treaty reservations cannot preclude the Court from
relying on customary international law, because customary law exists independently of
treaty law.
The Court held that the issues raised by Nicaragua – relating the use of force and self-defence
were regulated both by customary law and treaty law, in particular the Charter of the United
Nations. Yet, the United States had entered into a multilateral treaty reservation, which did
not, for example, allow the Court to rely on the Charter of the United Nations. The Court
sought to rely, instead, exclusively on customary law relating to the use of force. In doing so,
it held that multilateral treaty reservations cannot preclude the Court from relying on
customary international law because, even if treaty provisions and customary law deal
with the same subject matter, customary law exists independently of treaty law.

(2) Relationship between treaty and customary international law

The Court examined the relationship in two contexts to demonstrate that customary and
treaty law co-exist:
a) where the customary law principles were identical to treaty provisions; and
 b) where there were different rights or obligations under customary and treaty law in
respect of the same subject matter.

(a) Situations where the customary law principles were identical to treaty provisions.
In situations where customary law principles were identical to treaty provisions, the Court
held that even if principles of customary international law were subsequently codified into
treaties, they continue to exist side by side. For parties to treaties, both customary and treaty
law apply. If, for some reason, the treaty ceases to apply between treaty parties, the identical
customary law provision continues to apply between them.

The argument that customary international law exists alongside treaty law was brought by
Norway and Denmark in the North Sea Continental Shelf Cases. In these cases, the two
countries having failed to attribute an obligation under Article 6 of the Geneva Conventions
of 1958 to Germany, sought to bind Germany via customary international law. The Court
held that Article 6 did not reflect customary law at the time of the codification, and had
not attained that status at the time of the determination. In the Nicaragua case, the Court
relied on the North Sea Continental Shelf Cases to support its finding that principles of
customary international law can exist side by side with identical treaty law provisions and that
treaties do not supervene in a manner where the customary law ceases to exist.

The Court also relied on Article 51 of the UN Charter to show that a treaty itself can recognise
the existence of customary international law with respect to the same subject matter. For
example, the Court said that the term “inherent” in Article 51 recognised that customary law
rights of self-defence existed alongside treaty provisions.

Rules containing the same content could also be treated differently in customary
international law and in treaty law. For example, treaty law may contain institutions or
mechanisms to ensure the effective implementation of its provisions, including
provisions that reflect existing customary law. For example, a State that exercises the right of
self-defence under Article 51, according to the UN Charter, has an obligation to report the
use of force immediately to the Security Council. The Court held that this was a treaty
requirement and one that did not exist under customary law. Interestingly, while the failure
to report did not result in a breach of customary international law, the Court indicated that
the United States failure to observe this requirement contradicted her claim to be acting in
self-defence.

(b) Situations where customary and treaty law rights and obligations differed in respect of
the same subject matter.
The Court discussed situations where customary international law and treaty law provisions
were not identical. For example, the Court stated that concepts such as necessity and
proportionality, or the definition of what constitutes an armed attack, are not found under
Article 51, or the UN Charter, but in customary law. The Court concluded that (1) this proves
that customary international law continues to exist alongside treaty law and that (2) areas
governed by the two sources of law do not (always) overlap and the rules do not (always)
have the same content. The Court held:
“…the Charter, having itself recognized the existence of this right (inherent customary law
right of self-defence under A. 51 of the UN Charter), does not go on to regulate directly all
aspects of its content. For example, it does not contain any specific rule whereby self-defence
would warrant only measures which are proportional to the armed attack and necessary to
respond to it, a rule well established in customary international law. Moreover, a definition
of the “armed attack” which, if found to exist, authorises the exercise of the “inherent right”
of self-defence, is not provided in the Charter, and is not part of treaty law. It cannot therefore
be held that Article 51 is a provision which “subsumes and supervenes” customary
international law.”

In case of a divergence between treaty law and customary international law, for the parties
to a treaty, amongst themselves, the treaty provisions apply as lex specialis (law governing a
specific subject matter.)

The Court explained the relationship between the Charter of the United Nations and
customary international law on the use of force and self- defence in the following manner:
“However, so far from having constituted a marked departure from a customary international
law which still exists unmodified, the Charter gave expression in this field to principles already
present in customary international law, and that law has in the subsequent four decades
developed under the influence of the Charter, to such an extent that a number of rules
contained in the Charter have acquired a status independent of it. The essential consideration
is that both the Charter and the customary international law flow from a common
fundamental principle outlawing the use of force in international relations. The differences
which may exist between the specific content of each are not, in the Court’s view, such as to
cause a judgment confined to the field of customary international law to be ineffective or
inappropriate (to the parties of the Charter who are bound by the Charter) …).”

The Court concluded that principles such as those of the non-use of force, non-intervention,
respect for the independence and territorial integrity of States, right of collective
self defence and the freedom of navigation, continue to be binding as part of customary
international law, “despite the operation of provisions of conventional law in which they have
been incorporated.”
(3) The Court held that opinio juris and State practice remain necessary elements to
determine the existence of customary international law
In the Nicaragua case, as the North Sea Continental Shelf Case, considered both the
subjective element (opinio juris) and the objective element (State practice) as essential pre-
requisites to the formation and elucidation of a customary norm.

On State practice, the jurisprudence of the Nicaragua case contained several important
clarifications in respect of inconsistent State practice. The Court held that:
a) For a customary rule to come into force, it is not necessary to have complete
consistency in State practice in respect of the rule.
b) Inconsistent State practice does not affect the formation or existence of a customary
principle so long as the inconsistency is justified as a breach of the rule.
c) This attempt at justifying a violation would only make the rule’s customary law nature
stronger.

On opinio juris, the Nicaragua case jurisprudence elaborated on how to deduct opinio
juris from acts of State. The Court held that the following reflected opinio juris:
 a) The attitude of States towards certain General Assembly resolutions.
“The effect of consent to the text of such resolutions cannot be understood as merely
that of a “reiteration or elucidation” of the treaty commitment undertaken in the
Charter. On the contrary, it may be understood as an acceptance of the validity of the
rule or set of rules declared by the resolution by themselves…It would therefore seem
apparent that the attitude referred to expresses an opinio juris respecting such rule
(or set of rules), to be thenceforth treated separately from the provisions, especially
those of an institutional kind, to which it is subject on the treaty-law plane of the
Charter”
b) Statements by State representatives.
c) Obligations undertaken by States in international forums (the Court provided the
example of the Conference on Security and Co-operation in Europe, Helsinki)
d) The International Law Commission’s findings that a concept amounts to a customary
law principle.
e) Multilateral conventions.

(4) The principle of non-intervention is customary international law.

The Court began its analysis with two questions: “Notwithstanding the multiplicity of
declarations by States accepting the principle of non-intervention, there remain two
questions: first, what is the exact content of the principle… and secondly, is the practice
sufficiently in conformity with it for this to be a rule of customary international law?”

The principle of non-intervention requires that every State has a right to conduct its affairs
without outside interference. In other words, the principle “…forbids States or groups of
States to intervene directly or indirectly in internal or external affairs of other States.” This is
a corollary of the principle of sovereign equality of States. The Court held that:
“A prohibited intervention must accordingly be one bearing on matters in which each State is
permitted, by the principle of State sovereignty to decide freely. One of these is the choice of
a political, economic, social and cultural system, and the formulation of foreign policy.
Intervention is wrongful when it uses methods of coercion in regard to such choices, which
must remain free ones. The element of coercion, which defines, and indeed forms the very
essence of, prohibited intervention, is particularly obvious in the case of an intervention
which uses force, either in the direct form of military action, or in the indirect form of support
for subversive or terrorist armed activities within another State.

On State practice, the Court noted that even if “examples of trespass against this principle (of
non-intervention) are not infrequent”, this did not affect the customary law nature of the
prohibition on non-intervention. The Court held:
“The significance for the Court of cases of State conduct prima facie inconsistent with the
principle of non-intervention lies in the nature of the ground offered as justification. Reliance
by a State on a novel right or an unprecedented exception to the principle might, if shared in
principle by other States, tend towards a modification of customary international law. In fact,
however the Court finds that States have not justified their conduct by reference to a new
right of intervention or a new exception to the principle of its prohibition. The United States
authorities have on some occasions clearly stated their grounds for intervening in the affairs
of a foreign State for reasons connected with, for example, the domestic policies of that
country, its ideology, the level of its armaments, or the direction of its foreign policy. But
these were statements of international policy, and not an assertion of rules of existing
international law.”

On opinio juris, Court went on to hold, as before, that for a new customary rule to be
formed, Sate practice must be accompanied by the opinio juris. The Court held:
“There have been in recent years a number of instances of foreign intervention for the benefit
of forces opposed to the government of another State… It (the Court) has to consider whether
there might be indications of a practice illustrative of belief in a kind of general right for States
to intervene, directly or indirectly, with or without armed force, in support of an internal
opposition in another State, whose cause appeared particularly worthy by reason of the
political and moral values with which it was identified. For such a general right to come into
existence would involve a fundamental modification of the customary law principle of non-
intervention.”

The Court also noted that the United States has not sought to justify its intervention in
Nicaragua on legal grounds, but had only justified it at a political level. The United States had
not asserted for itself legal right of intervention in these circumstances. The Court, without
further analysis into State practice, almost immediately proceeded to find that “…no such
general right of intervention, in support of an opposition within another State, exists in
contemporary international law. The Court concludes that acts constituting a breach of the
customary principle of non-intervention will also, if they directly or indirectly involve the use
of force, constitute a breach of the principle of non-use of force in international relations.”

The Court held that the prohibition on the use of force contained in Article 2(4) of the UN
Charter has attained the status of a jus cogens norm. The Court found this to be “A further
confirmation of the validity as customary international law of the principle of the prohibition
of the use of force expressed in Article 2, paragraph 4, of the Charter of the United Nations…”.

WEEK 5
LAWS OF TREATIES
Treaties are evidence of the express consent of states to regulate their interests according to
international law. It is important to remember that treaties are the most important source of
international law and are increasingly used to codify and develop international law. Since
international legal relationship between States and international organizations came to be
increasingly governed by written agreements, a need was felt for developing a set of general
rules to govern the obligations of the parties to treaties. In 1966, the International Law
Commission adopted its final report on the law of treaties and in a Conference attended by
representatives of more than 100 states, held in Vienna, Austria in two sessions, in 1968 and
1969, the Vienna Convention on the Law of Treaties came to be adopted. The Convention
entered into force on January 27, 1980. Another Convention was held in 1986 at Vienna on
the Law of Treaties between States and International Organizations or between International
Organizations. The 1969 Convention deals with the formation of treaties, entry into force,
reservations, and procedure relating to invalidity, termination, withdrawal, and suspension
of operation of treaties as well as their interpretation.
Definition and Meaning of the term ‘Treaty’
International treaties are agreements, of a contractual character, between States, or
organizations of States, creating legal rights and obligations between the parties.

The term treaty means a written agreement by which two or more states or international
organizations create or intend to create a relation between themselves operating within the
sphere of international law.

Article 2(1)(a) of the Vienna Convention on the Law of Treaties, 1969 defines the term treaty:
Treaty means an international agreement concluded between States in a 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.

The term ‘treaty’ is used in a generic sense rather than a reference to a particular form of
international agreement. The term treaty covers convention, agreement, arrangement,
protocol, exchange of notes, exchange of letters, etc. International law makes no distinction
between agreements referred to as treaties and other types of agreements. The name or
designation given to an agreement is in itself unimportant and of no legal
consequence. There is no formal requirement in international law for a treaty to come into
existence. Treaties usually are in written form and the Vienna Convention on the Law of
Treaties applies only to those treaties which are in written form. However, it cannot be
categorically stated that oral agreements have no legal validity. The agreement entered into
between the parties must be governed by international law. Agreements which are subject
to some national system of law will not constitute treaties. Where the parties do not possess
international legal personality, the agreements entered into by and between such parties will
not be governed by international law.

Formation of treaties
No specific form or procedure has been prescribed in international law for the conclusion of
a treaty. The parties negotiating a treaty are free to agree upon a language or languages in
which the treaty is to be expressed. Though a precise procedure or standard does not exist,
following steps are generally adopted in concluding a treaty:

1) Accrediting of Persons by the Contracting States

2) Negotiation
3) Adoption of the text
4) Consent of the States
5) Entry into force

Accrediting of Persons by Contracting States

Normally, the treaty-making capacity of States is exercised by Heads of State or by their
governments. However, today, this treaty-making power is rarely exercised by them in
person, and is done through representatives. If they appoint a representative for the purpose
of negotiating, adopting or authenticating the text of a treaty, or for expressing the consent
of a State to be bound by a treaty, he is provided with a formal instrument called Full Powers.
Art. 2(1)(c) of the Vienna Convention defines Full Powers: ‘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 a State to be bound by a treaty, or for accomplishing any other act
with respect to a treaty. Full Powers is not necessary if the treaty is concluded by the Heads
of States or Governments, Minister of Foreign Affairs and heads of diplomatic mission.

Negotiation
The stage of negotiation is the most crucial stage in the formation of a treaty where the
participating States put forth proposals for discussions. After detailed deliberations, the
proposals are harmonized and the parties arrive at a tentative agreement.

Adoption of the Text

After negotiations, the form and content is settled by drawing up a text setting out its
provisions. The normal rule is that consent of all the participating states is required for
adopting the text of the treaty. The principle of unanimity in preparing the text of the treaty
in the case of international conferences is unrealistic and is not normally the rule. Article 9 (2)
of the Vienna Convention provides that adoption of the text of a treaty at an international
conference takes place by two-thirds of the state’s present and voting, unless by the same
majority they decide to apply a different rule.

Consent of the States

The treaties may bind states only when they have given their consent. Some of the ways in
which a State may express its consent to be bound by a treaty are by means of signature,
exchange of instruments, ratification or accession.

Authentication
In many cases authentication is not seen as a distinct step as the act of signature serves as
authenticating and an expression of willingness to be bound by the treaty. However, in cases
where the unsigned text of a treaty is incorporated in the final act of a conference, or where
the treaty adopted in an international organization is authenticated by the president of the
organization, authentication may be a separate step.

Entry into Force

A treaty enters into force in accordance with its provisions. Article 24 of the Vienna
Convention provides that a treaty enters into force in such manner and upon such date as it
may provide or as the states negotiating the treaty may agree. If the treaty is silent, it enters
into force as soon as consent to be bound by the treaty has been established for all the
negotiating states. Bilateral treaty enters into force when States exchange documents of
ratification. Where ratification is not required, the treaty comes into force after signature and
exchange or deposit of signed copies. Multilateral treaties enter into force from date when
prescribed number of ratifications or accessions has been made.

Ways in which consent can be given:

Signature
The act of affixing the signature by a State’s representative may express the consent of the
State to be bound by the treaty. This can happen only where the negotiating or participating
States have agreed that signature should have that effect, by providing in the treaty itself or
where it appears from the full powers that a State had intended to give that effect to the
signature of its representative or it was so expressed during negotiations. Sometimes, a
representative’s signature may be qualified, that is to say it may be affixed ad referendum,
i.e. subject to the State’s confirmation. In such a case, the State’s subsequent confirmation
constitutes signature of the treaty. In certain cases, where the signature may be subject to
ratification, a State will not be bound by the treaty till ratification is complete.

Exchange of Instruments
Article 13 of the Vienna Convention provides the consent of States to be bound by a treaty
constituted by instruments exchanged between them is expressed by that exchange when:
a. the instruments provide that their exchange shall have that effect; or
b. it is otherwise established that those States were agreed that the exchange of
instruments should have that effect.

Ratification
Article 2(1) (b) of the Vienna Convention on the Law of Treaties 1969 defines ratification as
‘the international act so named whereby a States establishes on the international plane its
consent to be bound by a treaty’.

Ratification is mainly required for the States to re-examine the over-all effect of the treaties
on their national interests. The other reason for having the step of ratification is to give the
States sufficient time to enact legislation to give effect to the obligations which they would
assume under the treaty.

Article 14 of the Vienna Convention provides that the consent of a State to be bound by a
treaty is expressed by ratification when:
a. the treaty provides for such consent to be expressed by means of ratification;
b. it is otherwise established that the negotiating States were required that ratification
should be required;
c. the State’s representative has signed the treaty subject to ratification; or
d. the intention of the State to sign the treaty subject to ratification appears from the
full powers of its representative or was expressed during the negotiation.

Form and Mode of Ratification

International law does not prescribe any form of ratification. According to Oppenheim,
ratification normally takes the form of a document signed by the Heads of the States or their
foreign ministers. It is usual to draft as many documents as there as parties to the treaty, and
to exchange these copies between the parties.

The difference between signing and ratification

Signing: agreement between national delegations

The negotiations that precede a treaty are conducted by delegations representing each of the
states involved, meeting at a conference or in another setting. Together they agree on the
terms that will bind the signatory states. Once they reach agreement, the treaty will be
signed, usually by the relevant ministers. By signing a treaty, a state expresses the intention
to comply with the treaty. However, this expression of intent in itself is not binding.

Ratification: approval of agreement by the state

Once the treaty has been signed, each state will deal with it according to its own national
procedures. After approval has been granted under a state’s own internal procedures, it will
notify the other parties that they consent to be bound by the treaty. This is called ratification.
The treaty is now officially binding on the state.

3 Related Terms

Signature Subject to Ratification, Acceptance or Approval

Where the signature is subject to ratification, acceptance or approval, the signature does not
establish the consent to be bound. However, it is a means of authentication and expresses
the willingness of the signatory state to continue the treaty-making process. The signature
qualifies the signatory state to proceed to ratification, acceptance or approval. It also creates
an obligation to refrain, in good faith, from acts that would defeat the object and the purpose
of the treaty. [Arts.10 and 18, Vienna Convention on the Law of Treaties 1969]

Ratification
Ratification defines the international act whereby a state indicates its consent to be bound to
a treaty if the parties intended to show their consent by such an act. In the case of bilateral
treaties, ratification is usually accomplished by exchanging the requisite instruments, while in
the case of multilateral treaties the usual procedure is for the depositary to collect the
ratifications of all states, keeping all parties informed of the situation. The institution of
ratification grants states the necessary time-frame to seek the required approval for the
treaty on the domestic level and to enact the necessary legislation to give domestic effect to
that treaty. [Arts.2 (1) (b), 14 (1) and 16, Vienna Convention on the Law of Treaties 1969]

Accession
"Accession" is the act whereby a state accepts the offer or the opportunity to become a party
to a treaty already negotiated and signed by other states. It has the same legal effect as
ratification. Accession usually occurs after the treaty has entered into force. The Secretary-
General of the United Nations, in his function as depositary, has also accepted accessions to
some conventions before their entry into force. The conditions under which accession may
occur and the procedure involved depend on the provisions of the treaty. A treaty might
provide for the accession of all other states or for a limited and defined number of states. In
the absence of such a provision, accession can only occur where the negotiating states were
agreed or subsequently agree on it in the case of the state in question. [Arts.2 (1) (b) and
15, Vienna Convention on the Law of Treaties 1969]

Reservations and Declarations

A reservation in international law is a caveat (condition) to a state's acceptance of a treaty. A
reservation is defined by the 1969 Vienna Convention on the Law of Treaties (VCLT) 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. [Article 2 (1)(d)]
Treaties may allow signatories to opt out of a particular provision, a tactic that enables
countries that accept the basic principles of a treaty to become a party to it even though they
may have concerns about peripheral (broader and surrounding) issues. These concerns are
referred to as “reservations,” which are distinguished from interpretative declarations, which
have no binding effect. States may make reservations to a treaty where the treaty does not
prevent doing so and provided that the reservation is not incompatible with the treaty’s
object and purpose. Other states may accept or object to such reservations. In the former
case, the treaty as modified by the terms of the reservations comes into force between the
states concerned. In the latter case, the treaty comes into force between the states concerned
except for the provisions to which the reservations relate and to the extent of the
reservations. An obvious defect of this system is that each government determines whether
the reservations are permissible, and there can be disagreement regarding the legal
consequences if a reservation is deemed impermissible.

A set of rules to interpret treaties has evolved. A treaty is expected to be interpreted in good
faith and in accordance with the ordinary meanings of its terms, given the context, object,
and purpose of the treaty. Supplementary means of interpretation, including the use of
travaux préparatoires (French: “preparatory works”) and consideration of the circumstances
surrounding the conclusion of the treaty, may be used when the treaty’s text is ambiguous.
In certain cases, a more flexible method of treaty interpretation, based on the principle of
effectiveness (i.e., an interpretation that would not allow the provision in question to be
rendered useless) coupled with a broader-purposes approach (i.e., taking into account the
basic purposes of the treaty in interpreting a particular provision), has been adopted. Where
the treaty is also the constitutional document of an international organization, a more
programmatic or purpose-oriented approach is used in order to assist the organization in
coping with change.

A treaty may be terminated or suspended in accordance with one of its provisions (if any
exist) or by the consent of the parties. If neither is the case, other provisions may become
relevant. If a material breach of a bilateral treaty occurs, the innocent party may invoke that
breach as a ground for terminating the treaty or suspending its operation. The termination of
multilateral treaties is more complex. By unanimous agreement, all the parties may terminate
or suspend the treaty in whole or in part, and a party specially affected by a breach may
suspend the agreement between itself and the defaulting state. Any other party may suspend
either the entire agreement or part of it in cases where the treaty is such that a material
breach will radically change the position of every party with regard to its obligations under
the treaty. A breach of a treaty is generally regarded as material if there is an impermissible
repudiation of the treaty or if there is a violation of a provision essential to the treaty’s object
or purpose.

The concept of rebus sic stantibus (Latin: “things standing thus”) stipulates that, where there
has been a fundamental change of circumstances, a party may withdraw from or terminate
the treaty in question. An obvious example would be one in which a relevant island has
become submerged. A fundamental change of circumstances, however, is not sufficient for
termination or withdrawal unless the existence of the original circumstances was an essential
basis of the consent of the parties to be bound by the treaty and the change radically
transforms the extent of obligations still to be performed. This exception does not apply if the
treaty establishes a boundary or if the fundamental change is the result of a breach by the
party invoking it of an obligation under the treaty or of any other international obligation
owed to any other party to the treaty.

Reservations are statements made by the country about certain clauses that will/will not
apply to a specific country. It should not be incompatible with the objects and purposes of
that treaty. If the treaty does not specify any clause regarding reservation. Any reservation
can be made as long it does not frustrate the object and purpose of the treaty. A reservation
is not valid if no other party has accepted that reservations. It has to be accepted by at least
one of the state parties to the treaty. There is a twelve-month limit to object to a reservation.
If it is not objected, then it is deemed to be accepted. If the reservation is opposed by all
nations. The state party has the option of leaving the treaty within 12 months. If in 12 months
no such statement is made, then it is deemed to be a party to that treaty. If a country makes
a reservation, the country cannot go to court saying that the other country is not following
the clauses if it has itself made a reservation regarding that particular clause. Also, any related
clause to the reservation made will not apply vis a vis nation which did not accept the
reservations {this is because of consensus ad idem}. If a treaty monitoring body states that
that a reservation is against the object and purposes of the treaty the reservation does not
stand. Reservations can be withdrawn later. However, reservations cannot be imposed at a
later date post ratification unless the treaty allows for the same. However, declarations can
be withdrawn at any stage.

Declarations are statements given by the countries regarding the clauses in a treaty where
the treaty anticipates such statements to be made. They do not have to be accepted by any
state parties. These can also be mandated by treaties themselves. These can also be optional.
It is also possible to revert from a declaration. An example of an option declaration is the
Article 36 of the ICJ Statute.

Reservations to the Convention on Genocide (1951)

Facts:
A dispute arose regarding the legal effect of reservations made by several states to the United
Nations Genocide Convention of 1948 (78 U.N.T.S. 277). As a result, the U.N. General
Assembly adopted a resolution in 1950 asking the International Court of Justice (ICJ) for an
advisory opinion on various issues in the dispute. Specifically, in a situation where a State
ratifies the Convention on the Prevention and Punishment of the Crime of Genocide subject
to a reservation made either on ratification or on accession, or on signature followed by
ratification, the General Assembly requested the ICJ to answer whether the reserving State
may be regarded as being a party to the Convention while still maintaining its reservation, if
the reservation is objected to by one or more of the parties to the Convention but not by
others. Additionally, if the answer to this question is in the affirmative, the General Assembly
requested the ICJ to answer the question of what is the effect of the reservation as between
the reserving State and both the parties which object to the reservation and the parties which
accept it. The ICJ considered these questions.
Questions before the court:
1. Can the reserving State be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by one or more of the
parties to the Convention but not by others?
2. If the answer to question I is in the affirmative, what is the effect of the reservation as
between the reserving State and:
- The parties which object to the reservation?
- Those which accept it?
3. What would be the legal effect as regards the answer to question 1 if an objection to
a reservation is made:
- By a signatory which has not yet ratified?
- By a State entitled to sign or accede but which has not yet done so?"

Decision:
1. State which has made and maintained a reservation which has been objected to by
one or more of the parties to the Convention but not by others can be regarded as
being a party to the Convention if the reservation is compatible with the Object and
purpose of the Convention: otherwise that State cannot be regard as being a party the
Convention.
2. If a party to the Convention objects to a reservation which it considers to be
incompatible with the object and purpose of the Convention, it can in fact consider
that the reserving State is not a party to the Convention;

If, on the other hand, a party accept the reservation as being compatible with the
object and purpose of the Convention, it can in fact consider that the reserving State
is a party to the Convention.
3. An objection to a reservation made by a signatory State which has not yet ratified the
Convention can have the legal effect indicated on the reply to Question 1 only upon
ratification. Until that moment it merely serves as a notice to the other Sate of the
eventual attitude of the signatory State.

An objection to a reservation made by a State which is entitled to sign or accede but

which has not yet done so is without legal effect.

Article 21 of the Vienna Convention on the Law of Treaties (VCLT) talks about the legal effect
of Reservations and objections to Reservations. Other provisions relating to Reservation in
the VCLT are:
- Article 2 (d) definition of Reservation
- Article 19 Formulation of Reservations
- Article 20 Acceptance of and objection to Reservations
- Article 22 Withdrawal of Reservations and of objections to Reservations
- Article 23 Procedure regarding Reservations
- Article 24 (4)

How are reservations different from declarations?

 • The title does not matter – only the effect.
• States will at times submit to the depositary statements called declarations or
interpretive declarations.
• If the “Declaration” excludes or modifies the legal effect of certain provisions of a
treaty in their application to the State in question, it is a reservation.

WEEK 5

SUBJECTS OF INTERNATIONAL LAW AND STATES

• Orthodox Positivist Doctrine that States are the only subjects of International Law.
According to Oppenheim, states only and exclusively are subjects of international
law.
• Non-state entities such as native people were often ignored, in Island of
Palmas case, Eastern Greenland case
• Private individuals were not considered subjects of international law, no
system of general human rights at the international level existed. Protection
of the person and property occurred through diplomatic protection, state
represented persons and property of its nationals as was in Mavrommatis
Palestine Concessions case of 1924 (The dispute was
initially between a private person (Mavrommatis, a Greek national)
and a State (Britain).Greece took up Mavrommatis’ case and filed
it before the PCIJ, alleging that Great Britain,
through the Palestine Government,
had refused to recognize the concession in Jerusalem and Jaffa and
accordingly sought compensation. Britain imposed its preliminary objection
and argued that Greece had no standing in this case. Greece argued that it is
entitled to protect its subjects such as Mavrommatis
when they have been injured by acts
contrary to international law by another state.
• 20th century developments:
• Growth of international organizations
• Decolonization and break up of states like USSR, Yugoslavia, Czechoslovakia.
• Acknowledgement of personality of native peoples (in Western Sahara
Advisory Opinion)
• Development of idea of individual and collective human rights (UDHR, ECHR,
ICCPR, ICESCR)
• Importance of non-state actors in many fields- MNCs, NGOs
• Kelsen’s view that only individuals are the subjects of international law; individuals
are the grundnorm.
• Modern view that States are the primary subjects of international law, but
individuals, international organizations and non-state entities are also subjects of
international law.
STATE RECOGNITION AND SELF DETERMINATION

STATES

•Orthodox Positivist Doctrine that States are the only subjects of International Law.
•Kelsen’s view that only individuals are the subjects of international law; individuals are the
grundnorm.
•Modern view that States are the primary subjects of international law, but individuals,
international organizations and non-state entities are also subjects of international law.
•Salmond defines state as a community of people which has been established for some
objectives such as internal order and external security
•According to Oppenheim, existence of State is possible only when people of state have
settled under highest government authority and habitually follow its orders.
•Starke has pointed out that definition of state is not possible but it can be discussed by its
essential elements.

STATE AND STATEHOOD

•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 provides that the state as an international person should possess the following
qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other states.
•The Arbitration Commission of the European Conference on Yugoslavia in Opinion No. 1
declared that ‘the state is commonly defined as a community which consists of a territory and
a population subject to an organised political authority’ and that ‘such a state is characterised
by sovereignty’.

•Different kinds of States and Non-state entities

1.Confederation- European Union
2.Federal State- USA, Switzerland, India
3.Condominium-England and France over New Hebrides
4.Vassal State- Tibet (was earlier a protectorate of China)
5.Protectorate- Bhutan

STATE TERRITORY
•State Territory has been defined as that portion which is subjected to the sovereignty of a
state
•There can be no state without a defined territory.
•Beyond inland waters, sovereignty of a coastal state extends to maritime belt, also called
territorial waters.
•Sovereignty is represented through the jurisdiction of a state on its territory/ territorial
boundary which also includes the territorial sea
MODES OF ACQUISITION OF STATE TERRITORY

Occupation- In Eastern Greenland Case (1933), PCIJ propounded two principles (Denmark
and Norway were contesting their sovereignty over Eastern Greenland):
(i) it is necessary for the occupation over the territory that there should be an
intention to establish sovereignty over the territory concerned
(ii) There should be some actual exercise of such authority
2. Prescription (Title by prescription also called acquisitive prescription)- State to fulfil
following conditions:
(i) State not to accept sovereignty of that portion by any other state
(ii) Possession to be peaceful and uninterrupted
(iii) Possession should be in public
(iv) Possession should be for a definite period
Accretion- New territory is added through natural causes; could also be by artificial means
4. Cession- Cession could be voluntary or may be under compulsion as a result of war.
Cession shall be considered valid only when sovereignty of a territory is transferred to
another state. (Indian teen bigha land to Bangladesh)
5. Annexation- Conquest
6. Lease- Island of Malta to Britain on lease
7. Pledge- Republic of Geneo pledged Island of Corsica to France
8. Plebiscite
9. Acquisition of territorial sovereignty by newly emerged states

MODES OF LOSS OF STATE TERRITORY

1.Cession
2.Operation of Nature
3.Subjugation
4.Prescription
5.Revolt
6.Dereliction (Renunciation)
7.Granting of independence to a colony by an Imperialist state

RECOGNITION
•Recognition is a method of accepting certain factual situations and endowing them with legal
significance
•Institute of International Law defined Recognition as a free act by which one or more states
acknowledge the existence of a definite territory of a human society politically organized
independent of any other existing states and capable of observing obligations of international
law which they manifest through their intention to consider it a member of international
community.
•Fenwick- through recognition, members of international community formally acknowledge
that the new state has acquired international personality
•Recognition of a state is an act by which another state acknowledges that the recognized
state possesses the essential conditions of statehood.
•Recognition as a criteria of statehood can de discussed under two theories-
(1)Constitutive (Hegel, Anzilloti, Oppenheim)
(2)Declaratory (Hall, Brierly, Pitt Corbett and Fischer)
•Modes of Recognition: Defacto and Dejure

•Consequences of Non-recognition:
1. Unrecognized state cannot sue
2. Not entitled to enter into diplomatic relations
3. No diplomatic immunities from legal processes in foreign states
4. Cant get property situated in a foreign state

•Implied and Express Recognition

•
•Individual and Collective Recognition

SELF DETERMINATION

•All peoples have the right to self-determination. By virtue of that right they freely determine
their political status and determine their own form of economic, social and cultural
development.
•Principle of Self-determination is embodied in the UN charter:
•Article 1(2) of the UN charter provides that the purpose of the UN is to base friendly relations
among nations on principle of self-determination, i.e. "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”.
•Article 55 of the UN Charter, building upon Article 1, states that "peaceful and friendly
relations among nations based on respect for the principle" of self-determination are to be
developed”

•Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial

Countries and Peoples, adopted in 1960 by eighty-nine votes to none, with nine abstentions
(also called the Colonial Declaration), stressed:
“All peoples have the right to self-determination; by virtue of that right they freely
determine their political status and freely pursue their economic, social and cultural
development”.
GA Resolution 1514 further added to transfer all powers to the people of those territories,
without any conditions or reservations, in accordance with their freely expressed will and
desire, without any distinction as to race, creed or color, in order to enable them to enjoy
complete independence and freedom.
•The Declaration is supplemented by General Assembly Resolution 1541 (XV), Resolution
2621 (XXV) embodying the 1970 Programme of Action for the Full Implementation of the
[1960] Declaration,'" and more importantly Resolution 2625 (XXV) containing the 1970
Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States ("1970 Declaration" or "International Law Principles Declaration").''

•According to GA Resolution 1541, also adopted in 1960, colonial powers were instructed to
allow for self-government in their colonies either through the creation of independent state,
autonomy under an existing independent state, or full integration with another state,
according to the will of the colonized population.
•The 1970 Declaration reaffirms the principle of self-determination as a right, providing that
"by virtue of the principle of... 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."'

•In 1966, the General Assembly adopted the International Covenants on Human Rights. Both
these Covenants have an identical first article, declaring that ‘all peoples have the right to
self-determination. By virtue of that right they freely determine their political status and
freely pursue their economic, social and cultural development’.
•Defining Self-determination: The principle of self-determination provides that the people
of the colonially defined territorial unit in question may freely determine their own political
status. Such determination may result in independence, integration with a neighbouring
state, free association with an independent state or any other political status freely decided
upon by the people concerned.
•Self-determination also has a role within the context of creation of statehood, reserving the
sovereignty and independence of states, in providing criteria for the resolution of disputes,
and in the area of the permanent sovereignty of states over natural resources.

ASPECTS OF SELF DETERMINATION

•Self-determination has two aspects-

•Internal self-determination and
•External self-determination
•Internal self-determination is the right of the people of a state to govern themselves without
outside interference.
•External self-determination is the right of peoples to determine their own political status
and to be free of alien domination, including formation of their own independent state.
However, independence is not the only possible outcome of an exercise of self-
determination.

•The principle of self-determination of peoples has given birth to a number of newly

independent States. It has served the decolonization process largely generated by the two
World Wars.
•After the first world war, the breakup of the Ottoman Empire resulted in the independence
of new sovereigns such as Iraq, Syria, Jordan, Lebanon, Palestine and Saudi Arabia. The
Austro-Hungarian Empire dissolved into Yugoslavia, Hungary, Czechoslovakia and Austria.
•The end of second world war gave a major push to the principle of self-determination by
way of decolonization, resulting in independence from major European colonial powers of
new nation-States in virtually every part of the world

•The Court in the East Timor (Portugal v. Australia) case declared that Portugal’s assertion
that the right of peoples to self-determination, as it evolved from the Charter and from United
Nations practice, has an erga omnes character, is irreproachable.’
•In Namibia case, the Court emphasised that ‘the subsequent development of international
law in regard to non-self-governing territories as enshrined in the Charter of the United
Nations made the principle of self-determination applicable to all of them’.
•The Western Sahara case reaffirmed this point. The case arose out of the decolonisation of
that territory, controlled by Spain as the colonial power but subject to claims by Morocco and
Mauritania. The Court was asked for an opinion with regard to the legal ties between the
territory at that time and Morocco and the Mauritanian entity. The Court stressed that the
request for an opinion arose out of the consideration by the General Assembly of the
decolonisation of Western Sahara and that the right of the people of the territory to self-
determination constituted a basic assumption of the questions put to the Court.
The Court concluded that the ties which had existed between the claimants and the
territory during the relevant period of the 1880s were not such as to affect the application
of resolution 1514 (XV), the Colonial Declaration, in the decolonisation of the territory and
in particular the right to self-determination. In other words, it is clear that the Court regarded
the principle of self-determination as a legal one in the context of such territories

•The Court emphasised that the right of peoples to self-determination was ‘one of the
essential principles of contemporary international law.
•The issue of self-determination came before the Supreme Court of Canada in Reference Re
Secession of Quebec in 1998 in the form of three questions posed. The second question asked
whether there existed in international law a right to self-determination which would give
Quebec the right unilaterally to secede. The Court declared that the principle of self-
determination ‘has acquired a status beyond “convention” and is considered a general
principle of international law’.

•Who is and can be the "self'?

•What "determination" can be made under what circumstances?
•Does the principle of self-determination apply to any territorial unit of an existing State?
•Where the principle does apply, does it include the right to secede unilaterally from the
parent State?

•In international law, the right of self-determination that became recognized in the 1960s
was interpreted as the right of all colonial territories to become independent or to adopt
any other status they freely chose.
•Ethnic or other distinct groups within colonies did not have a right to separate themselves
from the "people" of the territory as a whole. Today, the right of groups to govern themselves
is increasingly intertwined with human rights norms, in particular the rights of minorities and
indigenous peoples.
•While no right to secession has yet been recognized under international law, it is possible
that such a right may be accepted in the future as an exceptional measure, if a distinct group
of people is systematically denied the right to participate in the government of the state or if
individuals within such a group suffer systematic and gross violations of human rights that
make their participation in that state impossible.

•The principle states that

 "If the majority (or we might demand a higher percentage) of the adult population of a
geographic area expresses its wish, for any reason, to separate from the territorial unit of
which it is currently a part, it has the right to do so."
•A modified version of this right, and one that would also fit a situation:
"If the majority of the adult population of a geographic area expresses its wish to separate
from the territorial unit of which it is currently a part because the government of the
territorial unit does not represent the whole people, it has the right to do so.”

UTI POSSIDETIS JURIS

• Uti possidetis(Latin for "as you possess") is a principle in international law that territory and
other property remains with its possessor at the end of a conflict, unless otherwise provided
for by treaty; if such a treaty does not include conditions regarding the possession of property
and territory taken during the war, then the principle of uti possidetis will prevail.
•Uti possidetis juris (UPJ) is a principle of customary international law that serves to preserve
the boundaries of colonies emerging as States.
•Originally applied to establish the boundaries of decolonized territories in Latin America, UPJ
has become a rule of wider application, notably in Africa.
•The policy behind the principle has been explained by the International Court of Justice in
the Frontier Dispute (Burkina Faso/Mali) Case- wherein a question pertaining to a border
dispute was tabled before the International Court of Justice by Burkina Faso and Mali, which
got independence in 1960 after decolonization. It was held that an obligation exists to respect
pre-existing international frontiers in the event of a state succession.

The ICJ’s Advisory Opinion on Kosovo

Introduction
On July 22, 2010, the International Court of Justice (ICJ) issued its long-awaited advisory
opinion on the legality of Kosovo’s declaration of independence of February 17, 2008. The
expectation had been that the ICJ would offer a mixed ruling that would give some comfort
to Serbia and some support to Kosovo. Instead, by a majority of 10 to four, the ICJ concluded
that “the adoption of [the] declaration did not violate any applicable rule of international law.
“While the advisory opinion will not resolve the longstanding dispute between Belgrade and
Pristina, it will facilitate any further recognition of Kosovo. The ICJ opinion is also of interest
to parties engaged in contested territorial struggles elsewhere, notwithstanding the fact that
the opinion speaks principally to the specific and unique circumstances of the Kosovo case
and the scope for application of the opinion beyond Kosovo therefore is limited.

The Advisory Opinion and its Significance

The ICJ opinion was issued in response to a single question put to it by the United Nations
General Assembly in October 2008: “Is the unilateral declaration of independence by the
Provisional Institutions of Self-Government of Kosovo in accordance with international law?”
Serbia, which had initiated the procedure, was con dent that the ICJ would rule in its favour
for three reasons: first, Kosovo, although under international administration since June 1999,
was a province of Serbia, and the U.N. Security Council had affirmed the “sovereignty and
territorial integrity” of the then Federal Republic of Yugoslavia in its Resolution 1244 (1999)
establishing the international administration; second, the inherent conservativism of
international law and diplomacy militates against acts of unilateral secession, which Kosovo’s
declaration of independence was widely interpreted to be; and third, the conservativism of
the ICJ itself means that its members are generally reluctant to intervene in matters that
divide the international community and where the relevant legal principles are to some
degree uncertain or in ux. And, yet, it would have been di cult for the ICJ to ignore the fact
that, by the time of its ruling, 69 states—including 22 of 27 European Union (EU) member
states—had already recognized Kosovo’s independence.

Historically, questions submitted to the ICJ have been quite broad but this particular one
that the Court was asked to consider was a very narrow one. The ICJ was not asked what the
legal consequences of the declaration of independence were, or whether the people of
Kosovo had a right to self-determination, or whether Kosovo had satisfied the requirements
of state- hood. Con dent that its advantage lay with a narrow focus, Serbia chose to challenge
the legal authority of the U.N.-supervised Provisional Institutions of Self-Government of
Kosovo (PISG) to declare independence. However, the ICJ shifted the focus away from the
PISG. It concluded that the authors of the independence declaration were not the PISG but
rather “persons who acted together in their capacity as representatives of the people of
Kosovo outside the framework of the interim administration. “This was an important
differentiation because had the declaration been taken to be an act of the PISG, it could have
been interpreted to have exceeded the remit of the PISG—as the U.N.’s special representative
of the secretary-general (SRSG) had judged other acts of the PISG to have done in the past.
The Court was thus able to argue that, as the authors of the independence declaration were
acting outside the legal framework of the U.N. interim administration, their declaration did
not violate that framework and, as no legal prohibition of declarations of independence
exists, the declaration did not violate general international law.

The advisory opinion thus paves the way for more states to extend recognition to Kosovo, but
so far, the wave of new recognitions that Pristina had hoped for has not materialized. Even if
more recognitions are forthcoming, they are unlikely to alter the political landscape
fundamentally. Serbia has affirmed its opposition to Kosovo’s unilateral declaration of
independence and as long as Serbia continues to withhold its recognition of Kosovo, other
countries will follow suit, including China and Russia. As permanent members of the Security
Council, these two states are in a position to block Kosovo’s admission to the U.N. and thus
keep Kosovo in a sort of diplomatic limbo. The EU is keen to break the logjam, but as long as
some of its member states continue to oppose recognition, it will be di cult for the EU to act
effectively on this issue.

Western Sahara Case (Advisory Opinion)

Introduction
The Western Sahara advisory opinion of the International Court of Justice (ICJ) of 16 October
1975 deals with legal questions in the context of the decolonization of the territory of
Western Sahara.
Factual Background
In 1884 Spain seized control over Western Sahara and declared it a Spanish protectorate. In
the late 1950s Morocco and then also Mauritania claimed the territory. In the course of the
decolonization efforts of the United Nations (UN), Spain agreed to decolonize the territory by
way of a referendum. When Morocco still claimed the territory and Spain refused to submit
the dispute to the ICJ, the issue was dealt with by the UN General Assembly.

History of Proceedings
The case was brought before the Court in the procedure of an advisory opinion. Recalling its
resolution 1514 (XV) of 14 December 1960 containing the Declaration on the Granting of
Independence to Colonial Countries and Peoples and reaffirming the right of the population
of the Spanish Sahara to self-determination the United Nations General Assembly(UNGA)
made clear that its goal was to accelerate the decolonization process and to dispose of the
impeding controversy over the status of the said territory. The two questions the UNGA
submitted to the Court had this wording:
1. Was Western Sahara at the time of colonization by Spain a territory belonging to no
one? If the answer to the first question is in the negative,
2. What were the legal ties of this territory with the Kingdom of Morocco and the
Mauritanian entity?

Before the Court could proceed to answer the two questions submitted, it had first to
consider certain procedural matters. The existence of a ‘legal question’ as a precondition for
an advisory opinion was doubted by arguing that the two questions posed were either factual
or of a purely historical or academic character. The Court held, however, that even a mixed
question of law and fact was a ‘legal question’ and rejected the argument that both questions
related to a point in time in the past by citing that ‘…the Court may give an advisory opinion
on any legal question, abstract or otherwise’, which it had decided in the case on
the Admission of a State to membership in the United Nations (Advisory Opinions).

Spain suggested that due to its lacking consent, the Court should decline to exercise its
competence. The advisory jurisdiction would be used to circumvent the lacking consent which
was required in any dispute settlement and especially in this case where issues of
territorial sovereignty over Western Sahara were at stake. The Court stated that only
‘compelling reasons’ should lead it to refuse to give a requested advisory opinion. The
controversy had arisen during the proceedings of the UNGA and not in bilateral relations.
Furthermore, advisory opinions did not have binding force and contrary to the circumstances
in the case of Eastern Carelia (Request for Advisory Opinion) Spain was a member of the UN,
a party to the United Nations Charter and the ICJ Statute and thus subject to the advisory
jurisdiction of the Court. The decision would not affect the rights of Spain but assist the UNGA
in its decolonization policy. For the same reason, it was not devoid of object and purpose.

Findings and Reasoning of the Court

The Court answered the first question in the negative. It initially held that ‘time of colonization
by Spain’ meant the period beginning in 1884 when Spain proclaimed a protectorate over the
Rio de Oro. Therefore, the Court interpreted terra nullius (nobody’s land) by referring to the
law in force at that time. It held that state practice of the relevant time indicated that
territories inhabited by tribes or peoples having a social and political organization were not
regarded as terra nullius. The Court found that Western Sahara was at the time of colonization
by Spain inhabited by peoples which were socially and politically organized in tribes and under
chiefs competent to represent them and thus was not terra nullius.

The Court then proceeded to spend much more reasoning on the second question, asking
what were the legal ties of Western Sahara with the Kingdom of Morocco and the Mauritanian
entity. With a view to the decolonization context of the question the Court decided that the
notion ‘legal ties’ ‘may affect the policy to be followed in the decolonization of Western
Sahara’ and would thus include not only ties established directly with the territory but also
take reference to the people who may be found in the respective territory. In Western Sahara,
there had been nomadic tribes of Islamic faith with their own customary law.

After having dealt with the evidence brought by Morocco to substantiate its legal ties of
territorial sovereignty with Western Sahara on the basis of an alleged immemorial possession,
the Court denied any such legal ties. Referring to the Eastern Greenland Case of
the Permanent Court of International Justice (PCIJ) the Court stated that a claim to
sovereignty based upon continued display of authority involved the two elements of
‘intention and will to act as sovereign’ and ‘some actual exercise or display of such authority’.
Due to the lack of evidence of actual display of authority of Morocco relating to Western
Sahara the Court held these preconditions not fulfilled. As to Morocco’s specific evidence
relating to the time of colonization, the Court saw the alleged acts of internal sovereignty,
such as the imposition of taxes in the territory, as not proven and other acts as relating to
areas situated within present-day Morocco itself. International acts such as treaties of
Morocco with Spain and Great Britain invoked to display recognition of the Moroccan Sultan’s
sovereignty in Western Sahara were equally rejected as merely being evidence of ties of
allegiance or of personal influence regarding some of the nomadic tribes of the territory or of
evidence of the acceptance of the Sultan’s interest in that area rather than recognition of
existing sovereignty.

Since there did not exist, at the time of Western Sahara’s colonization, a Mauritanian State,
the Court confined itself to examine, with regard to Mauritania, legal ties other than those of
State sovereignty. The Court held that the ‘Mauritanian entity’, identical with the so-called
Shinguitti country, did not enjoy any form of sovereignty since ‘it did not have the character
of a personality or corporate entity distinct from the several emirates and tribes which
composed it.’ However, the nomadic peoples of this region had in the relevant period
possessed rights, e.g. concerning grazing pastures, cultivated land, and wells in Western
Sahara and the ‘Mauritanian entity’ alike which constituted legal ties between these two
territories.

The Court came to the conclusion that there were no legal ties of territorial sovereignty but
only legal ties of allegiance between Western Sahara and the Kingdom of Morocco (by 14
votes to two) and between Western Sahara and Mauritania (by 15 votes to one). The legal
ties of allegiance, however, were not of a nature that could affect the process of
decolonization of Western Sahara and the application of UNGA Resolution 1514 (XV) of 14
December 1960 as well as the principle of self-determination.
WEEK 6

INTERNATIONAL ORGANIZATIONS

• The 19th century witnessed a considerable growth in international non-governmental

associations, such as the ICRC (founded in 1863) and the International Law
Association (founded in 1873). These private international unions demonstrated a
wide-ranging community of interest on specific topics, and an awareness that co-
operation had to be international to be effective. Such unions created the machinery
for regular meetings and many established permanent secretariats.
• The work done by these organisations is of considerable value in influencing
governmental activities and stimulating world action.
• In addition, there developed during the course of the 19th century a series of public
international unions. These were functional associations linking together
governmental departments or administrations for specific purposes, and set up by
multilateral treaties.
• In 1865 the International Telegraphic Union was set up with a permanent bureau or
secretariat and nine years later the Universal Postal Union was created. This
combined a permanent bureau with periodic conferences, with decisions being
taken by majority vote.

• The latter half of the 19th century was marked by the proliferation of public
international unions, covering transportation, communications, health and
economic co-operation. These unions restricted themselves to dealing with specific
areas and were not comprehensive, but they introduced new ideas which paved the
way for the universal organisations of the 20th century.
• International organisations (or institutions) have now become indispensable.
• In a globalised world they facilitate co-operation across state frontiers, in a wide
range of subjects, from peacekeeping and peace enforcement to environmental,
economic and human rights concerns.
• The innovation of the 20th century was, of course, the creation of the global,
comprehensive organisations of the League of Nations in 1919 and the United
Nations in 1945.

• UN works in association with its specialised agencies. These are organisations

established by inter-governmental agreement and having wide international
responsibilities in economic, social, cultural and other fields that have been brought
into relationship with the United Nations.
• Most of the specialised agencies have devised means whereby the decisions can be
rendered virtually binding upon members. For example- ILO (established in 1919 to
protect and extend the rights of workers), UNESCO (the UN educational, scientific
and cultural organisation established to further the increase and diffusion of
knowledge by various activities, including technical assistance and co-operative
ventures with national governments) and the WHO (established in 1946 with the aim
of unifying the standards of health care).
 • Although such institutions are not able to legislate in the usual sense, they are able
to apply pressures quite effectively to discourage non-compliance with
recommendations or conventions.
• The IBRD (the world bank) emerged from the Bretton Woods conference of 1944 to
encourage financial investment, and works in close liaison with the IMF, which aims
to assist monetary co-operation and increase world trade.
• A number of international economic arrangements and institutions (not being
specialised agencies) of increasing importance have been established, i.e. The GATT
which later paved way for WTO.
• The proliferation of regional institutions, linking together geographically and
ideologically related states, since the close of the second world war, has been
impressive.

DEFINING INTERNATIONAL ORGANIZATIONS

• International organisations have been defined in international treaties simply as

‘inter-governmental organisations’ in order to demonstrate that the key
characteristic of such groupings is that their membership comprises states.
• The ILC in Article 2 of its draft Articles on the responsibility of international
organisations refers to ‘an organisation established by a treaty or other instrument
governed by international law and possessing its own legal personality’, while
noting that international organisations ‘may include as members, in addition to
states, other entitites’.
• Amerasinghe refers to organisations ‘normally created by a treaty or convention to
which states are parties and the members of the organisation so created are
generally states’ and points to basic characteristics such as establishment by
international agreement among states, possession of a constitution, possession of
organs separate from its members, establishment under international law, and
either exclusive or predominant membership of states or governments.
• The public international organiations may have a wide-ranging, open or universal
membership (such as the UN and the specialised agencies) or may have a limited or
closed membership (such as the African Union).
• Organisations may have a wider or narrower range of functions, depending upon
their constitution, with the UN as a good example of the former and WHO as a good
example of the latter.
• Whether a grouping will be regarded as an international organization will depend
essentially upon whether it in fact possesses some or all of the criteria noted above.

LEGAL PERSONALITY

• When personality is established under international law, they become subjects of

international law and capable of enforcing rights and duties
• Not all arrangements by which two or more states co-operate will necessarily
establish separate legal personality. It was held by the ICJ in Nauru v. Australia that
the arrangements under which Australia, New Zealand and the UK became the joint
‘administering authority’ for Nauru in the Trusteeship Agreement approved by the
 UN in 1947 did not establish a separate international legal personality distinct from
that of the states.
• The possession of international personality meant that the organization was a
subject of international law and capable of having international rights and duties and
of enforcing them by bringing international claims.
• Legal personality can be inferred from the objects and purposes of the international
organization.

• In the Reparation for injuries suffered in the service of the United Nations case the
court held that the UN had international legal personality because this was
indispensable in order to achieve the purposes and principles specified in the
charter. In other words, it was a necessary inference from the functions and rights
the organisation was exercising and enjoying. The court emphasised that it had to
be: acknowledged that its [i.e. UN’s] members, by entrusting certain functions to it,
with the duties and responsibilities, have clothed it with the competence required to
enable those functions to be effectively discharged.
• In the said case, the court examined the UN charter and subsequent relevant
treaties and practice to determine the constitutional nature of the UN and the
extent of its powers and duties. It noted the obligations of members towards the
organisation, its ability to make international agreements and the provisions of the
charter contained in Articles 104 and 105, whereby the UN was to enjoy such legal
capacity, privileges and immunities in the territory of each member state as were
necessary for the fulfilment of its purposes.
• The court emphasised that: fifty states, representing the vast majority of the
members of the international community, had the power in conformity with
international law, to bring into being an entity possessing objective international
personality, and not merely personality recognised by them alone.

• Article 104 of the UN charter itself provides that the UN ‘shall enjoy in the territory
of each of its members such legal capacity as may be necessary for the exercise of its
functions and the fulfilment of its purposes’.
• Most international organisations need to operate within particular states and thus
require that their personality be recognised not only within international law but
also within particular domestic law in order to be able to make and defend claims
and generally to perform legal acts in domestic law.
• All international legal persons will have some rights and duties (and by definition
rights and duties distinct from those of the members of the organisation), they will
not all have the same capacities. The question of how such rights and duties may be
enforced or maintained will also depend upon the circumstances. States are
recognised as possessing the widest range of rights and duties, those of international
organisations are clearly circumscribed in terms of express powers laid down in the
constituent instruments or otherwise evolved through practice.

• International organisations are expressly created by states by formal decision as laid

down in their constituent instruments. The very nature, status and authority of such
organisations will therefore depend primarily upon the terms of the constituent
instruments or constitutions under which they are established.
 • International organisations are unlike states that possess a general competence as
subjects of international law. They are governed by the principle of speciality, so
that, as the International Court has noted, ‘they are invested by the states which
create them with powers, the limits of which are a function of the common interests
whose promotion those states entrust to them’
• The establishment of an international organization with international personality
results in the formation of a new legal person, separate and distinct from that of the
states creating it.
• The ICJ noted in the Reparation case that ‘when an infringement occurs, the
organisation should be able to call upon the responsible state to remedy its default,
and, in particular, to obtain from the state reparation for the damage that the
default may have caused’ and emphasised that there existed an ‘undeniable right of
the organization to demand that its members shall fulfil the obligations entered into
by them in the interest of the good working of the organization’.
• Responsibility is a necessary consequence of international personality and the
resulting possession of international rights and duties. Such rights and duties may
flow from treaties, such as headquarters agreements.

INDIVIDUALS

• Individuals as a general rule lack standing to assert violations of international

treaties
• In the Danzig Railway Officials (1928) case, the PCIJ emphasised that under
international law, treaties did not as such create direct rights and obligations for
private individuals, although particular treaties could provide for the adoption of
individual rights and obligations enforceable by the national courts where this was
the intention of the contracting parties. In this case, Poland acquired the Railway
company under an international agreement. And in the said agreement it agreed to
provide facilities to the officials of the Railway company, which they later refused
and hence argued that international agreement is a kind of a treaty and individuals
do not possess rights under a treaty. This argument was rejected by the court.
• Under the provisions of the 1919 Peace treaties, it was possible for individuals to
apply directly to an international court in particular instances.
• Also, the tribunal created under the Upper Silesia Convention of 1922 decided that it
was competent to hear cases filed by the nationals of a state against that state.
• Other examples are European Convention on Human Rights, 1950; the Inter-
American Convention on Human Rights, 1969; the Optional Protocol to the ICCPR,
1966; the International Convention for the Elimination of all forms of Racial
Discrimination, 1965 and the Convention on the Settlement of Investment Disputes,
1965.

• The rights of individuals in international law have evolved significantly in the post-
1945 era.
 • Those committing piracy or slave trading have long been regarded as guilty of crimes
against international society bearing direct responsibility, for which they may be
punished by international tribunals or by any state at all.
• ‘International law imposes duties and liabilities upon individuals as well as upon
states’ as ‘crimes against international law are committed by men, not by abstract
entities, and only by punishing individuals who commit such crimes can the
provisions of international law be enforced’- as propounded by the Nuremberg and
Tokyo Tribunal
• The Genocide Convention of 1948 called for prosecutions by either domestic courts
or ‘an international penal tribunal’.
• Individual responsibility has also been confirmed with regard to grave breaches of
the four 1949 Geneva Red Cross Conventions and 1977 Additional Protocols I and II
dealing with armed conflicts
• International Convention on the Suppression and Punishment of the Crime of
Apartheid of 1973 declared apartheid to be an international crime involving direct
individual criminal responsibility

POSITION OF INDIVIDUALS OF INTERNATIONAL LAW

• Individuals are considered as subjects of international law.

• The importance of individuals under international law can be highlighted as under-
• Pirates as enemies of mankind and responsibility of states to apprehend and
punish them
• Conduct of foreigners to some extent regulated under international law
• War criminals punished under international law
• Espionage considered crime under international law
• Under certain treaties, individuals can claim compensation/ damages against
the state.
• The UN charter given a place of importance to rights of individuals.
• The international human rights law developed for the protection of rights of
the individuals
• Asylum and Extradition deal with individuals but are covered under
international law

ASYLUM

• The word "asylum" is the Latin counterpart of the Greek word "asylon," which
means freedom from seizure. Historically, asylum has been regarded as a place of
refuge where one could be free from the reach of a pursuer.
• “The practice of asylum is as old as humanity itself'
• Asylum means shelter and active protection extended to political refugee on his
request.
• Asylum consists of
1. Shelter more than temporary refuge
 2. Degree of active protection

Three Faces of Right to Asylum

1. The Right of a State to Grant Asylum:
The right of a state to grant asylum is well established in international law. It follows
from the principle that every sovereign state is deemed to have exclusive control over its
territory and hence over persons present in its territory. One of the implications of this
generally recognized rule is that every sovereign state has the right to grant or deny asylum
to persons located within its boundaries.'
Declaration on Territorial Asylum adopted by the General Assembly of the United
Nations in 1967 provides in Article 1(1) that, “Asylum granted by a State, in the exercise of
its sovereignty, to persons entitled to invoke Article 14 of the Universal Declaration of
Human Rights,... shall be respected by all other States."' Further, Article 1(3) of this
Declaration vests the state of asylum with the authority "to evaluate the grounds for the
grant of asylum.'
Convention on Territorial Asylum adopted by the Organization of American States in
1954, stipulates in Article 1 that, "every State has the right, in the exercise of its sovereignty,
to admit into its territory such persons as it deems advisable, without, through the exercise
of this right, giving rise to complaint by any other State.‘
In 1977, the Council of Europe adopted a Declaration on Territorial Asylum and in
Article 2, it reaffirms the right of states to grant asylum.

2. The Right of an Individual to Seek Asylum:

The second aspect of the right of asylum is the right of an individual to seek asylum.
This is an individual right that an asylum-seeker has vis-a-vis his state of origin.
Article 13(2) of the UDHR proclaims that, "everyone has the right to leave any
country, including his own”. With the adoption of the ICCPR, the right of an individual to
leave his country became written law binding on the states parties to the Covenant.' Article
12(2) of the Covenant states that, "everyone shall be free to leave any country, including his
own."
European Convention for the Protection of Human Rights and Fundamental
Freedoms" proclaims that, "everyone shall be free to leave any country, including his own. '
Similarly, the American Convention on Human Rights' stipulates in Article 22(2) that, "every
person has the right to leave any country freely, including his own.

3. The Right of an Individual to be Granted Asylum:

The third component right under the umbrella of the right of asylum is the right of
an individual to be granted asylum. In international law today, an individual has no right to
asylum enforceable vis-d-vis the state of refuge.
Article 14(1) of the UDHR proclaims the right of an individual "to seek and to enjoy in
other countries asylum from persecution." Scholars agree that this provision merely affords
the individual a right to seek asylum, not a right to receive it.
States should normally refrain from measures such as rejection at frontier of persons
seeking asylum as provided by UN Declaration on Territorial Asylum adopted by G.A. in 1967
TYPES OF ASYLUM

1. Territorial Asylum: IN own territory. It is an attribute of territorial sovereignty of the

state. Asylum to be respected by other states, once given, it can not be rejected or asylee
cannot be returned or expelled which endangers his life.
2. Extra-territorial Asylum: It is for temporary period, there will be binding local laws and
This could be in Foreign Embassies, consulates, premises of international institutions,
warships.

EXTRADITION

• Delivery of criminals;
• surrender/ handing over of fugitives.
• Originates from the social need to punish criminals.
• Oppenheim defines it as delivery of an accused or convicted individual to the state
on whose territory it is alleged to have committed or to have been convicted of a
crime, by the state on whose territory the alleged criminal happens to be for the
time being.
• Basis is
1. A Treaty
2. Reciprocity
• Duty of each state to punish criminal or return the criminal.
• No general duty to extradite unless there is a treaty and a request

PURPOSE OF EXTRADITION

1. Suppression of crime
2. Warning to criminals that they cannot escape
3. Interest of territorial state
4. Based on reciprocity
5. Achievement of international cooperation
6. Evidence more freely available in territory of commission of offence

Essential Conditions for Granting Extradition:

1. Non-extradition of political criminals: Began with French revolution of 1789,
consideration of humanity, fear that they wont be treated fairly, not dangerous to
other state
Re Castioni 1891, Swiss govt. asked Castioni from the UK, he murdered member of
state council of canton of Ticinio. There was political dissatisfaction prevailing.
Re Munier 1894, Anarchist, two explosions in Paris café and barracks. Fled to UK, not
a political offence.
2. Not allowed for military criminals
3. Not allowed for religious criminals
4. Rule of Specialty
 U.S. v. Rauscher, 1886; US sought extradition from UK on ground of murder of a
fellow servant in American ship but was being tried for hurt. US Supreme Court rejected it.
5. Rule of Double Criminality

5. Prima facie case

6. Accused need not be in the state (when crime was committed) which seeks
extradition- Mobarak Ali Ahmed v. State of Bombay, 1957 SC
7. States don’t extradite own citizens generally.
Cases:
Savarkar (1911): Indian revolutionary apprehended by French officials, handed over to the
British officials under wrong impression. Extradition was not allowed
Sucha Singh: Murdered the CM of Punjab- Mr. Pratap Singh Kairon, extradition from Nepal
Dharam Teja: embezzlement, fled to Ivory Coast- no treaty, later to UK, extradited under
treaty
Nadeem’s case: Accused in murder case of Mr. Gulshan Kumar

WEEK 7

STATE SUCCESSION

INTRODUCTION
• Succession is merger or absorption of one state by another state or states. State
succession is distinguished from govt. succession. When succession takes place then
a state loses itself fully or a part of its territory while in case of govt. succession only
the organization of a govt. or constitutional structure changes.
• Succession in respect of treaties is the most prevalent field of state succession, and
the Vienna Convention on Succession of States in Respect of Treaties is dedicated to
this issue.
• There are two relevant Conventions, the Vienna Convention on Succession of States
in Respect of Treaties, 1978, which entered into force in 1996, and the Vienna
Convention on Succession of States in Respect of State Property, Archives and Debts,
1983, which is not yet in force. However, many of the provisions contained in these
Conventions reflect existing international law.
• Succession to State Responsibility aims to hold the successor state responsible for its
predecessor wrongs.

• Succession is merger or absorption of one state by another state or states. State

succession is distinguished from govt. succession. When succession takes place then
a state loses itself fully or a part of its territory while in case of govt. succession only
the organization of a govt. or constitutional structure changes.
• Succession in respect of treaties is the most prevalent field of state succession, and
the Vienna Convention on Succession of States in Respect of Treaties is dedicated to
this issue.
• There are two relevant Conventions, the Vienna Convention on Succession of States
in Respect of Treaties, 1978, which entered into force in 1996, and the Vienna
Convention on Succession of States in Respect of State Property, Archives and Debts,
 1983, which is not yet in force. However, many of the provisions contained in these
Conventions reflect existing international law.
• Succession to State Responsibility aims to hold the successor state responsible for its
predecessor wrongs.
• The rule of state succession was incorporated from the Roman Law by Grotius. In
Roman law when a person dies his rights and duties are succeeded by his successor.
• A state may lose part of its territory, or it may lose all of it. Loss of territory may result
in the enlargement of one or more states. When a succession situation arises, the
point of legal interest is the effect on the international rights and obligations of the
state or states concerned.
• Despite attempts to assimilate Roman law, views regarding the continuity of the legal
personality in the estate which falls by inheritance, could not be sustained in the light
of state interests and practice.
• The opposing doctrine, which basically denied any transmission of rights, obligations
and property interests between the predecessor and successor sovereigns, arose in
the heyday of positivism in the nineteenth century.
• It manifested itself again with the rise of the decolonisation process in the form of the
‘clean slate’ principle, under which new states acquired sovereignty free from
encumbrances created by the predecessor sovereign.
• In many cases, succession related problems are dealt with by treaties, whether
multilateral treaties, for example, the Treaty of St Germain, 1919, which resolved
some succession questions relating to the dissolution of the Austro-Hungarian Empire,
or bilateral agreements as between, for instance, colonial power and new state,
which, however, would not bind third states. The system of devolution agreements
signed by the colonial power with the successor, newly decolonised state, was used
by, for example, the UK, France and the Netherlands.
• The German Federal Supreme Court noted in the Espionage Prosecution case that ‘the
problem of state succession is one of the most disputed areas of international law’.
• The international aspects of succession are governed through the rules of customary
international law.

KINDS OF SUCCESSION

´State succession are of two types (1) Universal Succession (2) Partial Succession
´Universal Succession: If the legal identity of a community is completely destroyed there is
said to be universal succession of states. Universal succession takes place when a state is
completely absorbed by another, either through subjugation or through voluntary merger.
Universal succession takes place under the following circumstances:
(a) When the territory of a state is forcibly annexed by other state.
(b) When a state voluntary merges into one or several states.
(c) When one state is divided into several states and several states are formed.
´Partial Succession: When as a result of civil war or war of liberation, a part of state breaks
off and takes up an independent position. Partial succession takes place under the following
circumstances:
(a) When a part of the state revolts and after achieving freedom becomes a
separate international person.
(b) When a part of state is ceded to another state.
 (c) When a state accepts the suzerainty or becomes a protectorate of another state.

RIGHTS AND DUTIES ARISING OUT OF STATE SUCCESSION

´When a state takes the place of another state following rights and duties arise.

(1) Political Rights and Duties: No Succession takes place in respect of political duties and
rights. The succession state is not bound by the treaties of peace or neutrality entered into
by the extinct state.

(2) Local rights and duties: In respect of land, rivers, roads, railways etc., the succeeding
state succeeds the rights and duties of the former state.

(3) Debts: It depends on the discretion of succeeding state whether to pay or not to pay the
public debts of the former state.

(4) Nationality: The nationals of the former state lose their nationality at the extinction of
the state and becomes the nationals of new state.

(5) Laws: As far as the law of the former states are concerned, civil law continues until it is
changed by the succeeding state.

(6) Public funds and public property: The successor state takes over the public funds and
public property of the predecessor state.

´The relevant date of succession is the date at which the successor state replaces the
predecessor state in the responsibility for the international relations of the territory to
which the succession relates. This is invariably the date of independence.
´Where a new entity emerges, one has to decide whether it is a totally separate creature from
its predecessor, or whether it is a continuation of it in a slightly different form. For example,
it seems to be accepted that India is the same legal entity as British India and Pakistan is a
totally new state.
´Yugoslavia was generally regarded as the successor state to Serbia, and Israel as a completely
different being from British mandated Palestine
´Cession or secession of territory from an existing state will not affect the continuity of the
latter state, even though its territorial dimensions and population have been diminished.
Pakistan after the independence of Bangladesh is a good example of this. In such a case, the
existing state remains in being, complete with the rights and duties incumbent upon it, save
for those specifically tied to the ceded or seceded territory.

USSR

´Where, however, a state is dismembered so that all of its territory falls within the territory
of two or more states, these rights and duties will be allocated as between the successor
states.
´Upon the demise of the USSR, the Russian Federation took the position that it was the
continuation of that state. This was asserted particularly with regard to membership of the
UN.
´Of great importance was the Decision of the Council of Heads of State of the Commonwealth
of Independent States on 21 December 1991 supporting Russia’s continuance of the
membership of the USSR in the UN, including permanent membership of the Security Council,
and other international organisations.
´Although not all of the instruments produced by the Commonwealth of Independent States
at the end of 1991 were strictly consistent with the continuity principle, it is clear that Russia’s
claim to be the continuation of the USSR (albeit within different borders of course) was
supported by the other former Republics and was accepted by international practice

BALTIC STATES

´A rather special situation arose with respect to the Baltic states (Estonia, Latvia and
Lithuania), which became independent after the First World War, but were annexed by the
Soviet Union in 1940. This annexation had been refused recognition by some states and
accepted de facto but not de jure by some others.
´The Baltic states declared their independence in August 1991. The European Community
adopted a Declaration on 27 August 1991 welcoming ‘the restoration of the sovereignty and
independence of the Baltic states which they lost in 1941’. The United States recognised the
restoration of the independence of the Baltic states on 4 September 1991.
´The implication of this internationally accepted restoration of independence would appear
to be that these states do not constitute successor states to the former USSR and would
therefore be free of such rights and obligations as would be consequential upon such
succession

SFRY

´The issue of Yugoslavia has been more complicated and tragic. The collapse of the Socialist
Federal Republic of Yugoslavia (the SFRY) took place over several months as the various
constituent republics proclaimed independence. The process was regarded as having been
completed in the view of the Arbitration Commission on Yugoslavia by the time of its Opinion
No. 8 issued on 4 July 1992.
´The Commission noted that a referendum had been held in Bosnia and Herzegovina in
February and March 1992 producing a majority in favour of independence, while Serbia and
Montenegro had established ‘a new state, the “Federal Republic of Yugoslavia”’ on 27 April
1992. The Commission noted that the common federal bodies of the SFRY had ceased to
function, while Slovenia, Croatia and Bosnia had been recognised by the member states of
the European Community and other states and had been admitted to membership of the UN.
The conclusion was that the former SFRY had ceased to exist. This was particularly reaffirmed
in Opinion No. 10.
´Nevertheless, the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to
maintain that it constituted not a new state, but the continuation of the former SFRY. This
claim was opposed by the other former republics of the SFRY and by the international
community
´The Security Council, for example, in Resolution 777 (1992) declared that ‘the state formerly
known as the Socialist Federal Republic of Yugoslavia has ceased to exist’ and that ‘the Federal
Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the
membership of the former Socialist Federal Republic of Yugoslavia in the United Nations’.
However, the Yugoslav position changed in 2000 and it requested admission to the UN as a
new member. The question as to the legal status of Yugoslavia as between 1992 and 2000
remained a source of some controversy, since its admission to the UN in 2000 could not
operate retroactively.
´The International Court in 2003 described this situation as sui generis and fraught with legal
difficulties, but in its judgment in the series of cases brought by Yugoslavia against NATO
members following the Kosovo conflict in 1999, the Court concluded that Yugoslavia had been
a member of the UN (and thus a party to the Statute of the Court) from 1 November 2000
and that the sui generis status of that state could not have amounted to membership of the
UN. Accordingly, while in 1996 the Court decided that Yugoslavia could appear before it in
the Genocide Convention (Bosnia v. Serbia) case, it held in 2003 that the situation as to
Yugoslavia’s status was sui generis and not without legal difficulty but finally decided in 2004
that Yugoslavia could not bring an action against NATO states as it had not been a member
of the UN and thus a party to the Statute in 1999. In its decision on the merits in the Genocide
Convention case in 2007, the Court noted that its decision of 1996 constituted res judicata
and could not be re-opened in the light of its subsequent rulings

´State succession also covers the situation of unification. One method of unification is by the
creation of a totally new state, such as the merger of the Yemen Arab Republic and the
People’s Democratic Republic of Yemen. Under the agreement between the two states of 22
April 1990 the establishment of the Republic of Yemen was accomplished by way of a merger
of the two existing states into a new entity with a new name.
´Unification may also be achieved by the absorption of one state by another in circumstances
where the former simply disappears and the latter continues, albeit with increased territory
and population. Such was the case with Germany.
´Following the conclusion of the Second World War, Germany was divided into the US, USSR,
UK and French zones of occupation and a special Berlin area not forming part of any zone.
Supreme authority was exercised initially by the Commanders-in-Chief of the Armed Forces
of the Four Allied Powers and subsequently by the three Allied High Commissioners in Bonn,
with parallel developments occurring in the Soviet zone.
´The Convention on Relations between the Three Powers and the Federal Republic of
Germany (FRG), which came into force in 1955, terminated the occupation regime and
abolished the Allied High Commission. The Three Allied Powers retained, however, their rights
and obligations with regard to Berlin and relating to ‘Germany as a whole, including the
reunification of Germany and a peace settlement’. Recognition of the German Democratic
Republic (GDR) was on the same basis, i.e. as a sovereign state having full authority over
internal and external affairs subject to the rights and responsibilities of the Four Powers in
respect of Berlin and Germany as a whole. Accordingly, it was accepted that in some sense
Germany as a whole continued to exist as a state in international law.

GERMANY
´On 18 May 1990 a treaty between the two German states was signed establishing a
Monetary, Economic and Social Union. In essence this integrated the GDR into the FRG
economic system, with the Deutsche Mark becoming legal tender in the GDR and with the
Bundesbank becoming the central bank for the GDR as well as for the FRG. On 31 August
1990, a second treaty was signed between the two German states which provided for
unification on 3 October 1990 by the accession of the GDR under article 23 of the Basic Law
of the Federal Republic. The Treaty between the Federal Republic of Germany and the
German Democratic Republic of 31 August 1990 clearly provided that the latter (GDR) was
simply assimilated into the former (FRG). Article 1 of the Treaty stipulated that, ‘upon the
accession of the German Democratic Republic to the Federal Republic of Germany in
accordance with article 23 of the Basic Law taking effect on 3 October 1990, the L¨ander of
Brandenburg, Mecklenburg- Western Pomerania, Saxony, Saxony-Anhalt and Thuringia shall
become L¨ander of the Federal Republic of Germany’
´In other words, the view taken by the parties directly concerned and accepted by the
international community demonstrates acceptance of the unification as one of the continuity
of the Federal Republic of Germany and the disappearance or extinction of the German
Democratic Republic.
´The principle of succession to colonial borders was underlined by the International Court in
the Burkina Faso/Mali case. The extension of the principle of uti possidetis from
decolonization to the creation of new states out of existing independent states is supported
by international practice, taking effect as the transformation of administrative boundaries
into international boundaries generally.

´This principle regarding the continuity of borders in the absence of consent to the contrary
is reinforced by other principles of international law, such as the provision enshrined in Article
62(2) of the Vienna Convention on the Law of Treaties, which stipulates that a fundamental
change in circumstances may not be invoked as a ground for terminating or withdrawing from
a treaty that establishes a boundary. In addition, Article 11 of the Vienna Convention on
Succession to Treaties, although in terminology which is cautious and negative, specifies that
A succession of States does not as such affect:
(a) a boundary established by treaty; or
(b) obligations and rights established by a treaty and relating to the regime of a boundary.
´The International Court dealt with succession to boundary treaties generally in the
Libya/Chad case, where it was declared that ‘once agreed, the boundary stands, for any other
approach would vitiate the fundamental principle of the stability of boundaries, the
importance of which has been repeatedly emphasised by the Court’. More particularly, the
Court emphasised that ‘a boundary established by treaty thus achieves a permanence
which the treaty itself does not necessarily enjoy. The treaty can cease to be in force
without in any way affecting the continuance of the boundary.

SUCCESSION TO TREATIES GENERALLY

´Practice seems to suggest ‘a tendency’ or ‘a general inclination’ to succession to ‘some

categories of multilateral treaties’ or to ‘certain multilateral conventions’ However, this
‘modern-classical’ approach is difficult to sustain as a general rule of comprehensive
applicability. One simply has to examine particular factual situations, take note of the claims
made by the relevant states and mark the reactions of third states. In the case of bilateral
treaties, the starting-point is from a rather different perspective.
´In such cases, the importance of the individual contractual party is more evident, since only
two states are involved and the treaty is thus more clearly reciprocal in nature. Accordingly,
the presumption is one of non-succession, depending upon all the particular circumstances
of the case. Practice with regard to the US, Panama, Belgium and Finland supports the ‘clean
slate’ approach.

ABSORPTION AND MERGER

´Where one state is absorbed by another and no new state is created (such as the 1990
accession to the Federal Republic of Germany of the L¨ander of the German Democratic
Republic), the former becomes extinct whereas the latter simply continues albeit in an
enlarged form. The basic situation is that the treaties of the former, certainly in so far as
they may be deemed ‘political’, die with the state concerned, although territorial treaties
defining the boundaries of the entity absorbed will continue to define such boundaries.
However, treaties of the absorbing state continue and will extend to the territory of the
extinguished state. These principles are, of course, subject to contrary intention expressed by
the parties in question.

Article 31(1) of the Vienna Convention on Succession to Treaties provides that where two or
more states unite and form one successor state, treaties continue in force unless the
successor state and the other state party or states parties otherwise agree or it appears that
this would be incompatible with the object and purpose of the treaty or would radically
change the conditions for its operation.
Article 31(2) provides that such treaties would apply only in respect of the part of the territory
of the successor state in respect of which the treaty was in force at the date of the succession
of states.

CESSION OF TERRITORY FROM ONE STATE TO THE OTHER

´When part of the territory of one state becomes part of the territory of another state, the
general rule is that the treaties of the former cease to apply to the territory while the treaties
of the latter extend to the territory.
´Article 15 of the Vienna Convention on Succession of States to Treaties, dealing with this
‘moving-frontiers’ rule, provides for this, with the proviso that where it appears from the
treaty concerned or is otherwise established that the application of the treaty to the territory
would be incompatible with the object and purpose of the treaty or would radically change
the condition for its operation, this extension should not happen.
´When, for example, the US annexed Hawaii in 1898, its treaties were extended to the islands
and Belgium was informed that US–Belgium commercial agreements were thenceforth to be
applied to Hawaii also.

SECESSION FROM AN EXISTING STATE TO FORM A NEW STATE OF STATES

´The factual situations out of which a separation or dismemberment takes place are many
and varied. They range from a break-up of a previously created entity into its previous
constituent elements, as in the 1961 dissolution of the United Arab Republic into the pre-
1958 states of Egypt and Syria
´Where there is a separation or secession from an independent state which continues, in
order to create a new state, the former continues as a state, albeit territorially reduced, with
its international rights and obligations intact. With regard to the seceding territory itself, the
leading view appears to be that the newly created state will commence international life
free from the treaty rights and obligations applicable to its former sovereign. Reasons for
this include the important point that it is difficult to maintain as a rule of general application
that states that have not signed particular treaties are bound by them.
´When Belgium seceded from the Netherlands in 1830, it was deemed to start international
life with ‘a clean slate’ and the same approach was adopted with regard to the secession of
Cuba from Spain in 1898 and that of Panama from Colombia in 1903. Similarly, when Finland
seceded from the Russian Empire after the First World War, the view taken by the UK and the
US was that Finland was not bound by the existing Russian treaties dealing with the territory.

´Any treaty which applied only to part of the territory of the predecessor state which has
become a successor state will continue in force in respect of the latter only (successor). Article
35 provides that existing treaties remain in force after the succession in respect of the
remaining territory, unless the parties otherwise agree or it is established that the treaty
related only to the territory which has separated from the predecessor state or it appears
from the treaty or is otherwise established that the application of the treaty in respect of the
predecessor state would be incompatible with the object and purpose of the treaty or would
radically change the conditions for its operation.

WEEK 8

JURISDICTION

State jurisdiction, reflects the international law general principles, of state sovereignty,
equality of states, and non-interference in other states domestic affairs. It means that a
government and its courts have general power to exercise authority over all persons and
things within its territorial boundaries. However, there must be a link between the individual,
the offence and the state court exercising jurisdiction over that person.

While it's primarily territorial, jurisdiction of states may be based on other grounds like
national security, and citizenship of the victim or the offender. However, the enforcement of
such jurisdiction is restricted by territorial factors.

Basis of Jurisdiction

1. Territoriality Principle
The first base of jurisdiction is the territorial principle and it means that the local court’s
power is geographically restricted within the borders of that state. However, as one offence
may take place in more than one single country, the territorial jurisdiction is divided into 2
categories: subjective and objective.

The subjective principle is exercised by the state in which the offence is started, while the
objective principle is exercised by the state in which the offence is completed. For example,
a fraud can be committed by someone in Ireland, against another in England, or a shooting
incident can take place on the borders of two countries. On the other hand, the state power
is not absolute within its territory as certain persons like diplomats are immune from the local
courts jurisdiction.

Domestic jurisdiction can be understood as- legislative jurisdiction (only to make binding
laws); executive jurisdiction (state to act only within borders, can’t enforce laws on foreign
territory) and judicial jurisdiction (try cases within the country, even where foreign element/
factor is present)

State to prosecute offences on their soil. Responsibility of state to maintain law and order

Lockerbie case
On December 21, 1988, a bomb exploded in the cargo hold of Pan Am Flight 103, killing all
259 passengers and crew, as well as eleven residents of the town of Lockerbie where the
wreckage of the Boeing 747 crashed 31,000 feet below. Though neither country had an
extradition treaty with Libya, the United States and United Kingdom both demanded that
Libya immediately surrender Al-Meghrahi and Fhimah to them for trial. Libya refused to
comply with the United States and United Kingdom demands. Libya filed a case in the ICJ
against US/ UK. Before the ICJ, Libya claimed that it had not signed any extradition treaty with
the UK and the US, and that, subsequently and in conformity with the 1971 Montreal
Convention (Articles 5 and 7), which requires a State to establish its own jurisdiction over
alleged offenders present in its territory and in the event of their non-extradition, only Libyan
authorities had jurisdiction to try their own citizens. Later in1994, Libya proposed trial before
a Scottish court, provided it sat in a neutral country such as the Netherlands. At first, the
United States and United Kingdom rejected the offer, believing it to be merely a propaganda
ploy. During the next few years, however, it became increasingly clear that, despite sanctions,
the two Libyans would not be surrendered for trial. Finally, in August 1998, the British
Government of Tony Blair persuaded the United States to agree to Libya's plan. On April 6,
1999, Al-Megrahi and Fhimah arrived at in the Netherlands. Later that day, pursuant to
Security Council Resolution 1192 (1998), the U.N. sanctions were suspended when Secretary-
General Kofi Annan communicated formally to the Security Council the successful handover
of the two accused.

Immunities from Territorial Jurisdiction

1. Diplomatic Agents
2. Foreign Embassies
3. Foreign Sovereigns
4. Property of Foreign Sovereign
5. Foreign Troops/ Armed forces
6. Foreign warships and their crew
7. International Organizations (Convention on Privileges and Immunities of UN 1947)

2. Nationality Principle/ Active Personality Principle

The nationality of the parties is the second ground for state jurisdiction, as a state can exercise
its jurisdiction beyond its territory (boundaries), regardless where the person is located,
subject that the offender or the victim (the passive personality) is a national of the claimant
country.
 Nottebohm’s case (Liechtenstein v. Guatemala, 1955)
Nottebohm, was born in Germany in 1881, lived in Guatemala for 34 years, retaining his
German citizenship and family and business ties with it. He however applied for Liechtenstein
citizenship (in 1939) a month after the outbreak of World War II. Nottebohm had no ties with
Liechtenstein but intended to remain in Guatemala. The naturalization application was
approved by Liechtenstein and impliedly waived its three-year. After this approval,
Nottebohm travelled to Liechtenstein and upon his return to Guatemala, he was refused
entry because he was deemed to be a German citizen. His Liechtenstein citizenship was not
honoured. Liechtenstein thereby filed a suit before the International Court to compel
Guatemala to recognize him as one of its national. Guatemala challenged the validity of
Nottebohm’s citizenship, the right of Liechtenstein to bring the action and alleged its belief
that Nottebohm remained a German national.

ICJ held that nationality was a legal manifestation of the link between person and state
granting nationality and recognition that person was more closely connected with that state
than with any other state. The court agreed with Guatemala and held that claims by
Lichtenstein were inadmissible. Although the Court stated that it is the sovereign right of all
states to determine its own citizens and criteria for becoming one in municipal law, such a
process would have to be scrutinized on the international plain in questions of diplomatic
protection. The Court upheld the principle of effective nationality, where the national must
prove a meaningful connection to the state in question. This principle was previously applied
only in cases of dual nationality to determine which nationality should be used in a given case.
However, Nottebohm had forfeited his German nationality and thus only had the nationality
of Liechtenstein.

3. Passive Personality Principle

Jurisdiction to try individuals for offence committed abroad but have affected or will affect
nationals of the state.

4. Protective Principle
The third ground is the protective or security principle and it allows a State to exercise
jurisdiction over foreigners outside its territory, regardless of their citizenship when there is
a threat to its national security.

Joyce v. Director, Public Prosecutor, 1946- Born in US, in 1933 acquired British passport on
basis of having been born in Ireland. In 1939, shifted to Germany and started working for
German radio. After 2nd world war, UK tried him for treason. Whether UK had jurisdiction? It
was held that he owed allegiance to crown, and it was his breach of duty

Abdul Cader v. Union of India, 1977 Madras HC- Petitioner was carrying on smuggling from
outside the country, never entered India, jurisdiction was held over the crime

5. Universality principle
And lastly, the Universality principle, allows any state to punish certain international offences
abroad like piracy, slavery, torture, crimes against humanity and genocide, whether
committed by or against foreign nationals. Each and every state has jurisdiction over crimes
offensive to international community.
 Eichmann case of 1961
(Attorney-General of the Government of Israel v. Adolf Eichmann)
Adolf Eichmann was a German Nazi officer involved in the internment and extermination of
Jewish people during World War II. When the war ended, Eichmann escaped to Argentina,
where years later, he was kidnapped by Israeli officers and forcibly brought to Israel for trial
for war-crime charges. Eichmann challenged the Israeli court’s jurisdiction, arguing that the
court was not empowered to adjudicate the case against Eichmann because his illegal
kidnapping by Israeli agents violated international law. The attorney general of Israel
(plaintiff) contended that the legality of the means of arrest and of the transfer of a fugitive
were not relevant jurisdictional issues for the court to address. Additionally, at the time of
Eichmann’s seizure, Argentina complained to the United Nations Security Council (Security
Council), alleging a violation of Argentina’s sovereignty by Israel’s actions. The Security
Council issued a Resolution, recognizing that Israel’s conduct would disrupt international
relations if the conduct were permitted in the future, and requesting that Argentina and Israel
reach an agreement on the settlement of the dispute. As a result, before Eichmann’s
indictment, Argentina and Israel settled the issue, with Argentina clearing Israel of
responsibility for any violations related to Eichmann’s kidnapping. The Supreme Court of
Israel then considered Eichmann’s challenge to Israel’s jurisdiction.

The judges found Eichmann guilty as charged and sentenced him to death. His execution by
hanging took place at 1:00 a.m. on June 1, 1962. Eichmann's body was cremated. The ashes
were scattered over the Mediterranean Sea, beyond Israel's territorial waters but not beyond
Israeli identity and Jewish consciousness.

WEEK 9

STATE RESPONSIBILITY

Sovereign has no obligation under Law.

But States have obligations under International Law (vis-à-vis other states)
A breach of an international obligation gives rise to a requirement for reparation
State Responsibility concerning International duties is a legal responsibility because it arises
out of treaties, customs (basically international law)
State cannot abolish or create international law
The rules of international law as to state responsibility concerns the circumstances in which
and principles whereby injured state becomes entitled to redress for damage suffered.

Traditional View
Limited to the obligation to make reparation
Responsibility only if damages/ injury occurs

Present View
Notion of Responsibility modified
Elimination of damage as a condition for engagement of responsibility for breach
QUESTION OF FAULT
The principle of objective responsibility (the ‘risk’ theory) maintains that the liability of the
state is strict. Once an unlawful act has taken place, which has caused injury and which has
been committed by an agent of the state, that state will be responsible in international law
to the state suffering the damage irrespective of good or bad faith.
The subjective responsibility concept (the ‘fault’ theory) emphasises that an element of
intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is
necessary before his state can be rendered liable for any injury caused.
Majority opinion of international community is in the objective responsibility (strict liability)
The laws of state responsibility are the principles governing when and how a state is held
responsible for a breach of an international obligation.
Laws of State Responsibility include-
(1) the conditions for an act to qualify as internationally wrongful, (Breach)
(2) the circumstances under which actions of officials, private individuals and other entities
may be attributed to the state, (Attribution)
(3) general defences to liability (Defences) and
(4) the consequences of liability. (Remedies)

CASES DERTERMINING STATE RESPONSIBILITY

Chorzow Factory (Indemnity) Case 1928 PCIJ

PCIJ observed that it is a principle of international law and even a general conception of law
that any breach of an engagement involves an obligation to make reparation.
Corfu Channel Case 1949 ICJ
ICJ held that Albania was responsible for explosions and observed “These grave omissions
involve the international responsibility of Albania” and “… there is a duty upon Albania
to pay compensation to the UK”.

State responsibility during wars…. Article 3 of the Hague Convention 1907….

- If belligerent state violates rules of war, it shall be responsible for payment of

compensation and it is responsible for the acts committed by persons of armed
forces.

DEVELOPMENT OF RULES OF STATE RESPONSIBILITY

Hague Convention 1907
Hague Conference of 1930 (League’s 1930 Codification Conference- reached Agreement on
Imputation)
ILC’s attention in 1948 to codify rules…. ILC appointed First Rapporteur in 1955… but his work
was abandoned… second rapporteur in 1969 upto 1980 Prof. Ago made an attempt to codify
rules and established the basic organisational structure of what would become the Draft
Articles. Third Rapporteur worked from 1980-1986 on definition of injured state. Fourth
Rapporteur worked on this from 1988- 1996. In 1997, ILC appointed Prof. Crawford as a
Special Rapporteur from 1998- 2001 and he undertook second reading of the draft before
which it was finally submitted and adopted.
ILC Draft Articles was then divided into four parts, 59 articles-
 Part I- Origin of International Responsibility – determining grounds and
circumstances under which state may be held to have committed an
international wrongful act which is a source of international responsibility and
elements of internationally wrongful acts, defences
Part II- content, form and degrees of international responsibility, determination of
consequences that a wrongful act of a state has under international law
(reparative and punitive consequences of international wrongful act)-
consequences
Part III- settlement of disputes and implementation
Part IV- Final provisions

ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001

Article 1 Responsibility of States for Internationally wrongful acts

Article 2 Elements of Internationally wrongful acts of a state
When conduct consisting of an act or commission is
(1) Attributable to state under international law
(2) Constitutes a breach of international obligation of the state
ELEMENTS OF INTERNATIONALLY WRONGFUL ACT
(1) Attribution- Before a state can be held responsible for any action, it is necessary
to prove a causal connection between the injury and an official act or omission
attributable to the state alleged to be in breach of its obligations.
The state is responsible for all actions of its officials and organs, even if the organ or official
is formally independent and even if the organ or official is acting ultra vires.
(2) Breach- The act of the state must constitute a breach of an obligation of the state
under international law.
(The obligation arises out of a treaty or a customary international law)

Article 4. Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international
law, whether the organ exercises legislative, executive, judicial or any other functions,
whatever position it holds in the organization of the State, and whatever its character as an
organ of the central Government or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal
law of the State.
In the Genocide Convention (Bosnia v. Serbia) case, it was regarded as ‘one of the
cornerstones of the law of state responsibility, that the conduct of any state organ is to be
considered an act of the state under international law, and therefore gives rise to the
responsibility of the state if it constitutes a breach of an obligation of the state’.

Article 7 Excess of authority or contravention of instructions:

The conduct of an organ of a State or of a person or entity empowered to exercise elements
of the governmental authority shall be considered an act of the State under international law
if the organ, person or entity acts in that capacity, even if it exceeds its authority or
contravenes instructions.
Inter-American Court of Human Rights in Velásquez Rodríguez case held:
This conclusion [of a breach of the Convention] is independent of whether the organ or official
has contravened provisions of internal law or overstepped the limits of his authority: under
international law a State is responsible for the acts of its agents undertaken in their official
capacity and for their omissions, even when those agents act outside the sphere of their
authority or violate internal law.

Rule also confirmed in Article 91 of AP I to GC

An unlawful act may be imputed to the state even where it was beyond the legal capacity of
the official involved, providing, as Verzijl noted in the Caire case, that the officials ‘have acted
at least to all appearances as competent officials or organs or they must have used powers or
methods appropriate to their official capacity’.
In the Sandline case, the Tribunal emphasised that, ‘It is a clearly established principle of
international law that acts of a state will be regarded as such even if they are ultra vires or
unlawful under the internal law of the state
Article 10 Conduct of an insurrectional or other movement
1. The conduct of an insurrectional movement which becomes the new Government of a
State shall be considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new
State in part of the territory of a pre-existing State or in a territory under its administration
shall be considered an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however
related to that of the movement concerned, which is to be considered an act of that State by
virtue of articles 4 to 9.

Article 10 deals with the special case of attribution to a State of conduct of an insurrectional
or other movement which subsequently becomes the new Government of the State or
succeeds in establishing a new State.

Article 41 Particular consequences of a serious breach of an obligation under this chapter

1. States shall cooperate to bring to an end through lawful means any serious breach within
the meaning of Article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the
meaning of Article 40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to
such further consequences that a breach to which this chapter applies may entail under
international law.

Art. 40 refers to serious breach by a State of an obligation arising under a peremptory norm
of general international law
Article 48. Invocation of responsibility by a State other than an injured State
1. Any State other than an injured State is entitled to invoke the responsibility of another
State in accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is
established for the protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the
responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-
repetition in accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in
the interest of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles 43,
44 and 45 apply to an invocation of responsibility by a State entitled to do so under paragraph
1.

KINDS OF STATE RESPONSIBILITY

Original Responsibility- for work of its govt.

(state is in direct breach of legal obligations binding on it under international law)

Vicarious Responsibility- for citizens and work of its agents

(State’s responsibility is limited to preventive measures- to secure that wrongdoer makes
suitable reparation and if necessary to punish him- these preventive and remedial
obligations of state in vicarious responsibility is an obligation- breach of which states
bears direct responsibility)

CONSEQUENCES OF STATE RESPONSIBILITY

1. International Delinquency (Any injury to another state committed by Head of State
in violation of international legal duty… is a wrongful act committed by a state which
is not a breach of a purely contractual obligation… may include ordinary breaches of
treaty obligations, unjustified intervention)

2. Responsibility for injury to Aliens (Duty to exercise due diligence)

1. For acts of private individuals
2. For acts of mob-violence
US Diplomatic and Consular Staff in Tehran 1980…. ICJ held that militants became
agents of the state
Reparations for Injuries Suffered in the Service of UN 1949… Count Bernadotte and
a French observer to mediate in conflict between Arabs and Jews in
Palestine (State’s responsibility towards the International Organizations)
3. For acts of insurgents
- Calvo Doctrine … Calvo of Argentina… no responsibility for losses suffered by
foreigners/ aliens during civil war

3. State Responsibility for acts of Govt. organs (where officials have acted out of their
powers and jurisdiction)
4. State Responsibility for acts with foreigners- (No international responsibility… only
local remedies)
5. State Responsibility for Breach of Treaty or Contractual Obligations
6. State Responsibility for Expropriation of Foreign Property (Appropriate
compensation in accordance with rules in force in state provided no inequality)
7. Liability for the Acts of Multinational Corporations
 -For Hazardous wastes
-For Environment
(right of each state to regulate and supervise the activities of TNCs within its national
jurisdiction and to take measures to ensure that such activities complies with its laws, rules
and regulations)
DEFENCES TO STATE LIABILITY
1. Consent (Article 20)
2. Counter-measure in respect of internationally wrongful act (Article 49 to 52)- Article
49 provides that an injured state may only take counter-measures against a state
responsible for the wrongful act in order to induce the latter to comply with the
obligations consequent upon the wrongful act.
3. Force majeure (Article 23)… Rainbow warrior case between France and New Zealand,
The issue of force majeure was raised by France in the Rainbow Warrior arbitration in
1990. It was argued that one of the French agents repatriated to France without the
consent of New Zealand had to be so moved as a result of medical factors which
amounted to force majeure. The Tribunal, however, stressed that the test of
applicability of this doctrine was one of ‘absolute and material impossibility’ and a
circumstance rendering performance of an obligation more difficult or burdensome
did not constitute a case of force majeure….

Force majeure has long been accepted as precluding wrongfulness, although the standard of
proof is high. In the Serbian Loans case, for example, the Court declined to accept the claim
that the First World War had made it impossible for Serbia to repay a loan.

4. Distress (Article 24)- The difference between distress and force majeure is that in the
former case there is an element of choice.
5. State of necessity (Article 25)- Article 25 provides that necessity may not be invoked unless
the act was the only means for the state to safeguard an essential interest against a ‘grave
and imminent peril’ and the act does not seriously impair an essential interest of the other
state or states or of the international community as a whole
6. Self-defence (Article 21)

CONSEQUENCES OF BREACH
(INTERNATIONALLY WRONGFUL ACT)

1. Cessation and non-repetition (Article 30)- The state responsible for the
internationally wrongful act is under an obligation to cease that act, if it is
continuing, and to offer appropriate assurances and guarantees of non-repetition if
circumstances so require.
2. Reparation (Article 31)- includes restitution, compensation and satisfaction (Art.
34, 35, 36 & 37)- 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.
Restitution in kind is the obvious method of performing the reparation, since it aims to re-
establish the situation which existed before the wrongful act was committed
Punitive or exemplary damages go beyond the concept of reparation as such and were indeed
held in Vel´asquez Rodrigu´ez v. Honduras (Compensation) to be a principle ‘not applicable in
international law at this time’. Compensation is usually assessed on the basis of the ‘fair
market value’ of the property lost, although the method used to calculate this may depend
upon the type of property involved.
Satisfaction constitutes a third form of reparation. This relates to non-monetary
compensation and would include official apologies, the punishment of guilty minor officials
or the formal acknowledgement of the unlawful character of an act.
The Tribunal in the Rainbow Warrior arbitration pointed to the long-established practice of
states and international courts of using satisfaction as a remedy for the breach of an
international obligation, particularly where moral or legal damage had been done directly to
the state. In the circumstances of the case, it concluded that the public condemnation of
France for its breaches of treaty obligations to New Zealand made by the Tribunal constituted
‘appropriate satisfaction’

Article 37 of the ILC Articles provides that a state responsible for a wrongful act is obliged to
give satisfaction for the injury thereby caused in so far as it cannot be made good by
restitution or compensation. Satisfaction may consist of an acknowledgement of the breach,
an expression of regret, a formal apology or another appropriate modality. An example of
such another modality might be an assurance or guarantee of non-repetition.

WEEK 10

INTERACTION BETWEEN INTERNATIONAL LAW AND DOMESTIC LAW

INTERACTION BETWEEN INTERNATION AND NATIONAL LEGAL SYSTEMS

• With advancement of communications and role played by international law in

effecting national laws, there is an increasing interpenetration of international law
and domestic law across a number of fields, such as human rights, environmental
and international investment law, where at the least the same topic is subject to
regulation at both the domestic and the international level (and indeed the regional
level in the case of the European Union)
• There are cases where the same situation comes before both national and
international courts, which may refer to each other’s decisions in a complex process
of interaction. For example, the failure of the US to allow imprisoned foreign
nationals access to consular assistance in violation of the Vienna Convention on
Consular Relations, 1963 was the subject of case-law before the International Court
of Justice, the Inter-American Court of Human Rights and US courts, while there is a
growing tendency for domestic courts to be used to address violations of
international law

• The State practices pertaining to incorporation of International Law into municipal

law have been explained by two schools of thought.
The schools of law on the relationship between international law and national laws
(municipal laws) are - Monist and Dualist.

MONIST

• Monistic theory was propounded in the Eighteenth century and was put forward by
two German scholars Moser (1701- 1785) and Martens (1756- 1821). According to
this doctrine, there exists only one set of legal system that is the domestic legal
order. This theory was further developed by Kelsen, an Austrian jurist.
• This approach does not distinguish between International Law from national law of
states.
• Accordingly, rules of International Law does not need to be transformed into
national/ municipal law through any further national legislation and the rules of
International Law can be applied as such by municipal courts. The rules of
International Law including those in the treaty automatically become effective and
incorporated in the Municipal law as soon as the State ratifies a treaty.
• The monists are united in accepting a unitary view of law as a whole and are
opposed to the strict division posited by the positivists.
• Kelsen emphasises the unity of the entire legal order upon the basis of the
predominance of international law by declaring that it is the basic norm of the
international legal order which is the ultimate reason of validity of the national legal
orders too.

• In a monist state, the court can declare any national rule of law invalid if it
contradicts with the international rule of law and thus establishes superiority/
supremacy of International Law even within the municipal sphere.
• The Netherlands and Germany are the examples of states having monist approach.
Many States expressly accept International Law as part of their domestic law while
others do not accept so.
• Where International Law becomes incorporated in a State’s domestic law without
the need for specific legislation, those parts of it, which are sufficiently explicit to be
enforceable by the domestic courts, are known as ‘self executing’. Some States
provide by their Constitutions that certain provisions of International Law shall be
self-executing. For example, the Constitution of the U.S.A., provides that
international treaties are part of the law of the land. Other countries have gone even
further by not only making International Law self executing, but assigning to it a rank
in the domestic hierarchy superior to all prior and subsequent legislation. Examples
of this are France and Germany. But there are other States that do not accept any
International Law as self-executing, or so accept it in part, for example United
Kingdom (U.K.), and these States are dualistic.

DUALIST SCHOOL

• According to dualist theory, International Law and municipal laws are two distinct,
separate and self-contained legal systems. And so, International Law would not as
such form part of the national law of the state.
 • In such a state, legislature must pass law to give effect to the treaty since ratification
of a treaty by the concerned state does not result in automatic incorporation in
domestic legal system. This view was propounded by German scholar Triepel in
1899, and further developed by Italian jurist Anzilotti. This theory represents that
International Law has different character from that of national law.
• This theory is supported by the positivists. One expression of the positivist–dualist
position has been the doctrine of transformation.

• According to dualist school of thought, the municipal courts shall apply municipal
law in case of a conflict between International Law and municipal law. Therefore,
municipal law has primacy over International Law according to this theory.
• The U.K. follows dualist pattern. In Britain, International Law becomes part of law of
land only when it is accepted in national law through legislation. A treaty has no
effect in municipal law until an Act of Parliament is passed to give effect to it.
• International Law does not determine which point of view is to be preferred. It is left
to the discretion of the states to decide according to their legal traditions and
national structure.
• India, more closely, follows the dualist pattern, which is also evident from the
provisions of the Constitution.
In the case of State of West Bengal v. Kesoram Industries Ltd. & others (AIR 2005 SC 46 at
para 494), a five judge Constitutional Bench of Supreme Court observed: “It is true that the
doctrine of Monism as prevailing in the European Countries does not prevail in India. The
Doctrine of Dualism is applicable. But, where the municipal law does not limit the extent of
the statute, even if India is not a signatory to the relevant International Treaty or covenant,
the Supreme Court in a large number of cases interpreted the Statutes keeping in view the
same”.

AN EMERGING THIRD APPROACH

• A third approach, being somewhat a modification of the dualist position and

formulated by Fitzmaurice and Rousseau amongst others, the framework tied to
reality.
• This approach begins by denying that any common field of operation exists as
between international law and municipal law by which one system is superior or
inferior to the other. Each order is supreme in its own sphere.
• Just as one cannot talk in terms of the supremacy of French law over English law, but
only of two distinct legal systems each operating within its own field, so it is possible
to treat international law and municipal law in the same way. They are both the legal
element contained within the domestic and international systems respectively, and
they exist within different juridical orders.
• Article 27 of the Vienna Convention on the Law of Treaties, 1969 lays down that in so
far as treaties are concerned, a party may not invoke the provisions of its internal
law as justification for its failure to carry out an international agreement.
• In the Polish Nationals in Danzig case, the Court declared that ‘a State cannot
adduce as against another State its own constitution with a view to evading
obligations incumbent upon it under international law or treaties in force’.
 • The Court underlined this approach in the Avena case (2004) noting that ‘The rights
guaranteed under the Vienna Convention are treaty rights which the US has
undertaken to comply with in relation to the individual concerned, irrespective of
the due process rights under the US constitutional law. The Court took a step further
in that case, which also concerned the failure to allow foreign prisoners access to the
consular officials of their state in breach of the Vienna Convention on Consular
Relations, declaring that ‘the remedy to make good these violations should consist in
an obligation on the US to permit review and reconsideration of these nationals’
cases by the US courts . . . with a view to ascertaining whether in each case the
violation of Article 36 committed by the competent authorities caused actual
prejudice to the defendant in the process of administration of criminal justice’
• In contrast, in the Serbian Loans case of 1929 when the crucial issues turned upon
the interpretation of internal law, and that the rules of international law in a strict
sense were not at issue then. The court turned to municipal law concepts where it
was found necessary in the circumstances
• There is indeed a clear trend towards the increasing penetration of international
legal rules within domestic systems coupled with the exercise of an ever-wider
jurisdiction with regard to matters having an international dimension by domestic
courts. This has led to a blurring of the distinction between the two previously
maintained autonomous zones of international and domestic law, a re-evaluation
of the role of international legal rules and a greater preparedness by domestic
tribunals to analyse the actions of their governments in the light of international law.
• The domestic courts may often have to determine the meaning of an international
rule that is relevant for a case before them.

ROLE OF JUDICIARY IN INDIA FOR TREATY OBLIGATIONS

• The courts in India have played an important role in overcoming the challenges in
implementing the provisions of treaty/ covenants to protect the rights of its citizens.
• Courts in India, in certain cases, refused to implement treaty provisions in municipal
courts without any legislation to that effect.
• But at the same time, it has upheld the provisions of human rights treaties and given
effect to those provisions where there is no contradictory municipal law. Judiciary
has played an important role over the years in realizing certain provisions of
international conventions and protecting the rights of its citizens by basing its
decisions on international legal principles.
• In Xavier v. Canara Bank Limited (1969), the issue that came up before the Kerala
High Court was whether the provisions of International Covenants to which India is a
party become part of Corpus Juris of India. More specifically, whether Article 11 of
the ICCPR 1966, which provides that no one shall be imprisoned on the ground of
inability to fulfil a contractual obligation, has become part of Municipal law of the
country, consequently conferring right to remedial action at the instance of an
aggrieved individual.
• The Court held that ‘The remedy for breaches of International Law in general is not
found in the courts of the state because International Law per se or proprio vigore
has not the force or authority of civil law, till actual legislation is undertaken'. It
further observed that although the UDHR sets a common standard of achievement
 for all peoples and all nations but individual citizens cannot complain about their
breach in municipal courts even if the country concerning has adopted the
covenants and ratified the Optional Protocol. The court also stated that the basic
human rights enshrined in the International Covenants may at best inform judicial
institutions and inspire legislative action within member states but apart from such
deep reverence, remedial action at the instance of an aggrieved individual is beyond
the area of judicial authority.

• In the case of J.G. Verghese v. Bank of Cochin (1980), the Hon'ble Supreme Court
also dealt with the matter concerning effect of International Law and its
enforceability at the instance of individuals within the state (India). The apex court
observed that the positive commitment of the state parties ignites legislative action
at home but does not automatically make the covenant an enforceable part of law
in India.
• Also in Magnabhai Ishwarbhai Patel v. Union of India, the Constitutional Bench of
Supreme Court held that the effect of Article 253 is that if a treaty, agreement or
convention with a foreign state deals with a subject within the competence of State
Legislature, the Parliament alone has the power to make laws to implement the
treaty, agreement or convention or any decision made at any international
conference, association or other body.
• Further, in 2005, the apex court in the case of State of West Bengal v. Kesoram
Industries Limited, held that a Treaty entered into by India cannot become law of
the land and it cannot be implemented unless Parliament passes a law as mentioned
under Article 253. These observations of the Supreme Court in the above mentioned
cases, only reflect the dualistic theory according to which a treaty becomes a law of
the land only after its transformation into that law by the legislative process

• The common law countries which are following dualist pattern, requires the Act of
Parliament to transform treaty into the national legislation. But at the same time,
the common law countries maintain that the rules of international customary law
are part of municipal law only if they are not inconsistent with municipal law.
• The apex court in India has also followed this rule. In the case of People's Union for
Civil Liberties v. Union of India (1997), the Supreme Court severely regulated
telephone tapping which is permitted under Section 5(2) of the Telegraph Act. The
court took into consideration the right to privacy implicit in Article 21 and recognized
by Article 12 of the UDHR 1948, and Article 17 of the ICCPR 1966. It further held that
the rules of customary International Law which are not contrary to the municipal law
shall be deemed to be incorporated in the domestic law. We have seen a shift in the
approach of the Supreme Court, as in earlier cases, the Hon'ble court held that a
treaty entered into by India cannot become law of the land but in the later case of
People's Union for Civil Liberties, the court observed that the rules of Customary
International Law shall be deemed to form part of municipal law provided it is not in
contradiction to the enacted law.
 • The positive approach of the Supreme Court, towards acceptability of the principles
of International Law is further heightened in the case of Vellore Citizens Welfare
Forum v. Union of India and others (1996). The Hon'ble court upheld the validity of
principles of 'sustainable development', 'polluter pays' and 'precautionary principle'.
It held that 'once these principles are accepted as part of the Customary
International Law, there would be no difficulty in accepting them as part of the
domestic law. It is almost accepted proposition of law that the rules of Customary
International Law which are not contrary to the municipal law shall be deemed to
have been incorporated in the domestic law and shall be followed by the Courts of
Law'.
• In Gramophone Company of India Limited v. Birendra Bahadur Pandey (1984), the
Supreme Court observed that the comity of nations requires that the rules of
International Law may be accommodated in the municipal law even without express
legislative sanctions provided they do not run in conflict with the Acts of Parliament.
• The Supreme Court has played a very important role in implementing treaty
obligations in the case of Vishaka and others v State of Rajasthan and others
(1997). It is a landmark judgment wherein the apex court while promulgating the
guidelines on women's sexual harassment has held that 'in the absence of domestic
law occupying the field, to formulate effective measures to check the evil of sexual
harassment of working women at all work places, the contents of international
conventions and norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in Article 14, 15, 19
(1)(g) and 21 of the Constitution and the safeguards against sexual harassment
implicit therein. Any international convention not inconsistent with the fundamental
rights and in harmony with its spirit must be read into these provisions to enlarge
the meaning and content thereof, to promote the object of the constitutional
guarantee'.
The court further observed that it is now an accepted rule of judicial construction that
regard must be had to the international conventions and norms for construing domestic law
where there is inconsistency between them and there is a void in the domestic law. The
court referred to its own decision in case of Nilabati Behera v. State of Orissa and others
(1993). The court in this case observed that there is no reason why these international
conventions and norms cannot be used for construing the fundamental rights expressly
guaranteed in the Constitution of India.

• In Gita Hariharan v. Reserve Bank of India (1999), while interpreting the right of
guardianship of mother while father was alive (under the Hindu Minority and
Guardianship) Act 1956, the Convention on the Elimination of All Forms of
Discrimination against Women was again relied on.
• Also, denying maternity benefit to some of the women employees of Municipal
Corporation of Delhi was held invalid by the SC relying on Maternity Benefit Act,
1951 read alongwith Article 11 of the above mentioned Convention in the case of
Municipal Corporation of Delhi v. Female Workers (2000)

• In a recent judgment of 2014 on recognizing transgenders as third gender and

enforcing their rights guaranteed in the Constitution as citizens of this country, the
Supreme Court referred to the provisions of international conventions. In this case
 titled as National Legal Services Authority v. Union of India and others (2014), the
Hon'ble Court observed that generally, a legislation is required for implementing the
international covenants, unlike the position in the USA where the rules of
International Law are applied by the municipal courts based on the theory of their
implied adoption by the state, as a part of its own municipal law. The apex court,
while referring to the Indian position with respect to the implementation of
international treaty obligations into the municipal legal system, observed that such a
'supremacy clause', as is adopted by the US, is absent in our Constitution. Courts in
India would apply the rules of International Law according to the principles of
Comity of Nations, unless they are overridden by clear rules of domestic law.
• The court held in the later case that the covenants which India has ratified can be
used by the municipal courts as an aid to the interpretation of statutes by applying
the doctrine of harmonization. And therefore, if the Indian law is not in conflict with
the international covenants, particularly relating to human rights, to which India is a
party, the domestic court can apply those principles in Indian conditions. In the
present case, the rights of transgenders and their protection against discrimination
were brought to surface and the Supreme Court gave due regard to international
conventions (Article 1, 3 and 5 of UDHR, Article 6 and 7 of ICCPR) and norms for the
protection of rights of transgender community. The court highlighted the
significance of International Conventions and the rights covered under these
conventions for the third gender. The court also referred to United Nations
Convention Against Torture and Other Cruel Inhuman and Degrading Treatment or
Punishment, which deals with protection of individuals and groups made vulnerable
by discrimination or marginalization.

• The court, while interpreting Article 51 read alongwith Article 253 of the
Constitution of India, held that if the Parliament has made any legislation which is in
conflict with International Law, then Indian courts are bound to give effect to the
Indian law. However, in the absence of contrary legislation, municipal courts in India
would respect the rules of International Law. Therefore, the Indian commitment to
International Treaty obligations under Constitution of India is defined under Article
51(c); which although is only a Directive Principles of State Policy, yet the power of
Parliament under Article 253, to enact laws for implementing the treaty obligations
is an important provision in this direction.

WEEK 11

USE OF FORCE

JUS AD BELLUM AND JUS IN BELLO

TWO PERSPECTIVES OF WAR

¡ Reasons you fight- Jus ad bellum

¡ How you fight- Jus in bello

JUS AD BELLUM
 ¡ Jus ad bellum refers to the conditions under which States may resort to war or to the
use of armed force in general.
¡ Jus ad bellum is the right to resort to war
¡ Jus (or ius) ad bellum is the title given to the branch of law that defines the
legitimate reasons a state may engage in war.
¡ Jus ad Bellum governs the pre-engagement conduct of states and non-state actors
that are considering whether to engage in war and armed conflict. It is concerned
with the justification of and limits to the use of force.

¡ The principal legal source of jus ad bellum derives from the Charter of the United
Nations, which declares-
§ Article 2(4) “All members shall refrain in their international relations from the
threat or the 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”; and
§ Article 51: “Nothing in the present Charter shall impair the inherent right of
individual or collective self-defense if an armed attack occurs against a
Member of the United Nations.”

¡ The ius ad bellum (law on the use of force) or ius contra bellum (law on the
prevention of war) seeks to limit resort to force between States. Under the UN
Charter, States must refrain from the threat or use of force against the territorial
integrity or political independence of another state (Art. 2, para. 4). Exceptions to
this principle are provided in case of self-defence or following a decision adopted by
the UN Security Council under chapter VII of the UN Charter.

PROHIBITING USE OF FORCE

¡ In 1919, the Covenant of the League of Nations and, in 1928, the Treaty of Paris (the
Briand-Kellogg Pact) sought to outlaw war.
¡ The adoption of the United Nations Charter in 1945 confirmed the trend: "The
members of the Organization shall abstain, in their international relations, from
resorting to the threat or use of force ..." However, the UN Charter upholds States'
right to individual or collective self-defence in response to aggression by another
State (or group of States). The UN Security Council, acting on the basis of Chapter VII
of the Charter, may also decide to resort to the collective use of force in response to
a threat to the peace, a breach of the peace or an act of aggression.
The legality of the use of armed force in international relations is determined solely under
jus ad bellum.

¡ Article 39: The Security Council shall determine the existence of any threat to the
peace, breach of the peace, or act of aggression and shall make recommendations,
or decide what measures shall be taken in accordance with Articles 41 and 42, to
maintain or restore international peace and security.
¡ Article 40: In order to prevent an aggravation of the situation, the Security Council
may, before making the recommendations or deciding upon the measures provided
 for in Article 39, call upon the parties concerned to comply with such provisional
measures as it deems necessary or desirable. Such provisional measures shall be
without prejudice to the rights, claims, or position of the parties concerned. The
Security Council shall duly take account of failure to comply with such provisional
measures.
¡ Article 41: The Security Council may decide what measures not involving the use of
armed force are to be employed to give effect to its decisions, and it may call upon
the Members of the United Nations to apply such measures. These may include
complete or partial interruption of economic relations and of rail, sea, air, postal,
telegraphic, radio, and other means of communication, and the severance of
diplomatic relations.
¡ Article 42: Should the Security Council consider that measures provided for in Article
41 would be inadequate or have proved to be inadequate, it may take such action by
air, sea, or land forces as may be necessary to maintain or restore international
peace and security. Such action may include demonstrations, blockade, and other
operations by air, sea, or land forces of Members of the United Nations.

JUS IN BELLO

¡ Jus in bello is the set of laws that come into effect once a war has begun.
¡ Its purpose is to regulate how wars are fought, without prejudice to the reasons of
how or why they had begun.
¡ Jus in bello is the body of legal norms governing battle and occupation - the "conduct
of individuals and units toward combatants, non-combatants, property, and the
environment." Violations are punishable under customary international law and
international legal instruments.
¡ A party engaged in a war that could easily be defined as unjust (for example, Iraq’s
aggressive invasion of Kuwait in 1990) would still have to adhere to certain rules
during the prosecution of the war, as would the side committed to righting the initial
injustice.

¡ This branch of law relies on-

§ customary law, based on recognized practices of war,
§ treaty laws, such as- the Hague law and the Geneva Law
§ Hague Regulations of 1899 and 1907, which set out the rules for
conduct of hostilities.
§ Four Geneva Conventions of 1949, which protect —the sick and
wounded (First); the shipwrecked (Second); prisoners of war (Third);
and civilians in the hands of an adverse party and, to a limited extent,
all civilians in the territories of the countries in conflict (Fourth)—and
§ Additional Protocols of 1977, which define key terms such as
combatants, contain detailed provisions to protect non-combatants,
medical transports, and civil defense, and prohibit practices such as
indiscriminate attack.

¡ Jus in bello regulates the conduct of parties engaged in an armed conflict.

 ¡ IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts,
notably by protecting and assisting all victims of armed conflict to the greatest
extent possible.
¡ International humanitarian law, or jus in bello, is the law that governs the way in
which warfare is conducted.
¡ IHL is purely humanitarian, seeking to limit the suffering caused. It is independent
from questions about the justification or reasons for war, or its prevention, covered
by jus ad bellum.

¡ The purpose of international humanitarian law is to limit the suffering caused by war
by protecting and assisting its victims as far as possible.
¡ The law therefore addresses the reality of a conflict without considering the reasons
for or legality of resorting to force.
¡ It regulates only those aspects of the conflict which are of humanitarian concern. It is
what is known as jus in bello (law in war). Its provisions apply to the warring parties
irrespective of the reasons for the conflict and whether or not the cause upheld by
either party is just.

¡ IHL is intended to protect victims of armed conflicts regardless of party affiliation.

That is why jus in bello must remain independent of jus ad bellum

LEGAL REGULATION OF THE USE OF FORCE

The Law before 1945:
• The just war doctrine
• Positivism and sovereign right of states to resort to war
• Attempts at prohibiting war before 1945
(i) Covenant of the League of Nations
(ii) General Treaty for the Renunciation of War (Pact of Paris) Kellogg-Briand Pact) , 1928

THE LAW AFTER 1945: PROHIBITION OF THE USE OF FORCE

4. All members shall refrain in their international relations from the threat or use of force
against the territorial integrity and political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
Basic rule: threat or use of force is prohibited
• Meaning of force: Force means ‘armed force’, not other means of economic or political
pressure. Economic coercion is prohibited by the Declaration of Friendly Relations of 1970,
although it is not strictly considered as ‘force’ within the ambit of article 2(4)
Nicaragua case – Indirect use of force is also prohibited.
Threat of force: Not only use but also threat of force is prohibited. ‘Threat of force’ means an
ultimatum announcing recourse to military measures it certain demands are not accepted.
This issue is vitally important to the policy of mutual deterrence under which the possession
of nuclear weapons and a preparedness use them underlie the defence policies of the nuclear
weapons states and of the rationale for the NPT of 1968. If the threat to use nuclear weapons
was to be illegal at international law, then the legitimacy of the policy of deterrence was also
at risk. In the Nuclear Weapons case, the ICJ held that a threat to use force would be illegal
under art. 2(4) of the charter, if the force being contemplated itself was illegal under art.
2(4).If the threat is to be lawful, then the declared readiness of a State to use force must be
a use if force that is in conformity with the charter. In specifically considering whether the
threat or use of nuclear weapons raise essentially the same questions, the Court found that
a threat constitutes a breach of 2(4) if it were to ‘be directed against the territorial integrity
or political independence of a State, or against the Purposes of the UN. (paras 47-48) Thus, a
threat which might be intended to protect against a humanitarian or environmental disaster
might not be a breach under art. 2(4).

Views on Interpretation of Article 2 (4)

There are two different views on the interpretation of Article 2(4) of the Charter:
(1) The permissive view; and
(2) The restrictive view.

Permissive view: According to this view, Article 2(4) does not lay down a total ban on the use
of force and States are still permitted to use force in quite a number of situations, for example:
(1) Use of force in anticipation of a future attack;
(2) Use of force to rescue nationals abroad [See, Entebbe incident];
(3) Humanitarian intervention;
(4) Regime change (intervention for democracy).
Restrictive view
• According to this view, the Charter brought about a radical alteration in States’ right to use
force.
• Article 2(4) lays down a total ban on the use of force save only where explicit exceptions are
made in the Charter itself.
• The Charter allows only two exceptions to the principle of non-use of force, namely:
(1) Self-defense under Article 51; and
(2) Enforcement action under Chapter VII of the Charter.

Restrictive view is the established law.

• An analysis of authorities reveals that the overwhelming majority of jurists accept the
restrictive view that Article 2(4) of the Charter contains a total prohibition of the use of force.
• The State practice also favors this view. • Therefore, the correct interpretation of Article
2(4) is that any use of force by a State for whatever reason is banned unless explicitly allowed
by the Charter of the United Nations.

Military and Paramilitary Activities in and against Nicaragua (Nicaragua v the US)
• Nicaragua alleged that the United States was responsible under international law for certain
military operations in Nicaraguan territory.
• It claimed that the United States had
(i) used direct armed force against it by laying mines in Nicaraguan waters, and
attacking and damaging Nicaraguan ports and oil installations, and
(ii) Given assistance (by means of training, arming, financing, and supporting) to the
contras, Nicaraguan guerrillas fighting to overthrow the Nicaraguan Government.
Nicaragua case
• The US argued that it activities against Nicaragua was justified because it was acted in the
exercise of collective self-defense in response to Nicaragua’s support of arms to rebels in El
Salvador, a friendly country.
• As regards the issue of ‘multilateral treaty reservation’ contained in the US declaration
accepting compulsory jurisdiction, while admitting that it could not apply Art. 2(4) of the
Charter against the US, the Court held that it could apply rules of customary international law
on the non-use of force and non-intervention.
• Nicaragua case is quite significant because in this case the World Court thoroughly
examined and ruled on three important principles of international law, namely:
(1) Principle of non-use of force;
(2) Principle of non-intervention; and
(3) Collective self-defense.

(On use of force)

• According to the facts of Nicaragua case, while the arming and training of the contras can
certainly be said to involve the threat or use of force against Nicaragua, this is not necessarily
so in respect of all the assistance given by the US Government.
• The Court considers that the mere supply of funds to the contras, while undoubtedly an act
of intervention in the internal affairs of Nicaragua, does not in itself amount to a use of force.

(On intervention)
• The principle of non-intervention is part and parcel of customary international law.
• The principle forbids all States or group of States to intervene directly or indirectly in internal
or external affairs of other States.
• By virtue of the ‘doctrine of sovereignty’, a State is free to choose any political, economic,
social and cultural system, or to formulate whatever foreign policy, it likes.
• Intervention is wrongful when it uses methods of coercion in regard to such choices, which
must remain free ones.
• The element of coercion is particularly obvious in the case of an intervention which uses
force, either in the direct form of military action, or in the indirect form of support for
subversive or terrorist armed activities within another State.

(On Collective self-defense)

• The rule prohibiting force allows for certain exceptions, the right of self-defense being one
among them.
• Whether it is an individual or collective self-defense, three essential criteria must be
satisfied:
(1) An armed attack by another State (the State concerned, having been the victim of an
armed attack);
(2) Necessity of self-defense; and
(3) Proportionality.
• The Court finds that in customary international law, there is no rule permitting the exercise
of collective self-defense in the absence of a “request” by the State which regards itself as the
victim of an armed attack.
• Therefore, in the case of a collective self-defense, the ‘request by the victim of armed attack’
to come to its assistance is an extra requirement.

(Judgment of the Court)

• The world Court announced its judgment in favor of Nicaragua.
• Held that the United States was under an obligation to make reparation to Nicaragua for all
injury caused to Nicaragua by the breaches of obligations under international law.

2. PRINCIPLE OF NON-INTERVENTION
• The principle of non-intervention indicates the right of every sovereign State to conduct its
affairs without outside interference.
• Authorities:
(1) Art. 2(7) of the Charter
(2) The 1970 GA Declaration on Principles of International Law, GA Resolution 2625 (XXV).
(3) The 1965 GA Declaration on Inadmissibility of Intervention, GA Resolution 2131 (XX), 1965.

Humanitarian Intervention
• The essence of humanitarian intervention is: “When a State commits cruelties against and
persecution of its nationals in such a way as to deny their fundamental human rights and to
shock the conscience of mankind, intervention in the interest of humanity is legally
permissible.”
• There appears to be no justification in the view that humanitarian intervention was
established in customary international law because there was no widespread and consistent
State practice in support of it.
• Even if it was so it could not survive Article 2(4) of the Charter.
• Besides, the concept is open to abuse. There is particular concern that alleged humanitarian
interventions usually result in the overthrow of the incumbent government.
• For instance, Vietnamese intervention in Cambodia in 1979 and Indian intervention in East
Pakistan (Bangladesh) in 1971.
• Humanitarian intervention can, therefore, be unlawful on two grounds:
(1) It can be a violation of the rule of non-use of force in Art. 2(4), which is a rule of jus cogens,
the only exceptions to this prohibition being (a) self-defence and (b) enforcement action.
(2) It can be a violation of the rule of non-intervention. Under Art. 2(7), even the United
Nations may not intervene in domestic matters of States, except in the form of an
enforcement action under Chapter VII.
• However, we have to distinguish ‘unilateral humanitarian intervention’ (intervention by one
State or a group of States against another State on humanitarian grounds) from ‘collective
humanitarian intervention’ in the form of enforcement action under Chapter VII of the
Charter.
• While the former is a violation of Article 2(4) of the Charter and the rule of non-intervention,
and thus illegal, the latter is legal.

3. RIGHT OF SELF-DEFENCE OF STATES

Article 51, UNC
Nothing in the present Charter shall impair the inherent right of individual and collective self-
defence if an armed attack occurs against a Member of the United Nations, until the Security
Council has taken measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self-defense shall be immediately
reported to the Security Council….
3.1 Self-Defence as a Response to an Armed Attack
• Article 51 prescribes that “nothing in the present Charter shall impair the inherent right of
individual and collective self-defence if an armed attack occurs…”
• The meaning is clear and unambiguous. The right of self-defence is restricted to a case
where there is an actual armed attack against the State.
• But here again there are two differing views: permissive and restrictive.

Permissive school
• The ‘permissive school’ maintains that Article 51 does not restrict the right of self-defence
to cases of armed attack only and that States have wider rights of self-defence permitted by
customary international law.
• Bowett, for example, argues that: “The travaux pr`eparatoires suggests that the Article
should safeguard the right of self-defence, not restrict it. …The right implicitly accepted was
not confined to reaction to ‘armed attack’ but permitted of certain substantive rights.”

Restrictive school
• The ‘restrictive school’ maintains that Article 51 restricts the right of self-defence to cases
of armed attack only.
• Philip C. Jessup writes: “Article 51 of the Charter suggests a further limitation on the right
of self-defence: it may be exercised only ‘if an armed attack occurs’. This restriction in Article
51 very definitely narrows the freedom of action which States had under traditional
international law.”

Restrictive view is the established law.

• A treaty is as a general rule to be interpreted in accordance with the ordinary meaning to
be given to the terms of the treaty in their context (Art. 31).
• In Article 51, the expression ‘if an armed attack occurs’ is very clear and unambiguous. The
textual interpretation, therefore, shall prevail and travaux preparatories has no relevance
here.
• It is in conformity with the main purpose of the UN: non use of force: Article 2(4).
• It is also accepted by the overwhelming majority of jurists and supported by state practice.
• In the Nicaragua case, the ICJ ruled that
“In the case of individual self-defence, the exercise of this right is subject to the State
concerned having been the victim of an armed attack. Reliance on collective self-defence of
course does not remove the need of this.”

3.2 Legality of anticipatory self-defence

• The most debatable and controversial attempt to widen the exceptional right of self-
defence is the argument that States have the right of anticipatory self-defence whenever an
attack is expected.
• This idea seems to be based on ‘military necessity’, according to which ‘the best defence s
to attack first.
• Bowett advocates anticipatory self-defence: “No State can be expected to await an initial
attack which, in the present state of armaments, may well destroy the State’s capacity for
further resistance and so jeopardize its very existence.”
• McDougal argues that States faced with a perceived danger of immediate attack cannot be
expected to await the attack ‘like sitting ducks’.
• There are two major arguments held by them:
(1) Anticipatory self-defense is allowed by customary international law;
(2) Nuclear weapons and modern sophisticated devices make it inadvisable to wait for the
attack.

Does customary international law allow anticipatory self-defense?

• Many Western writers are of the view that the Caroline case is a classic precedent of
anticipatory self-defence and a rule of customary international law has been formed through
subsequent State practice.
There have been only a few occasions on which international tribunals have considered the
right of anticipatory self-defence. The Nuremberg International Military Tribunal recognized
a right of preventive action but rejected the argument that the German invasion of Norway
could be justified as an act of self-defence where the facts did not sustain an imminent threat.
Even as far as State practice is concerned, States have only rarely relied upon anticipatory
self-defence in justification for their actions and, wherever the doctrine is invoked, the SC and
GA routinely reject any such justification on the facts. For example, When Israel attacked the
Palestine camps in Lebanon in 1975, the SC, including developing, socialist and developing
states condemned the action.
The Caroline Case 30 B.F.S.P. 195-196
• The case arose out of the Canadian rebellion of 1837. The Caroline was an American ship
that had been used by Canadian rebels to harass the British authorities in Canada.
• While it was moored in an American port, a British force from Canada entered upon United
States territory, seized the Caroline, fired at her and sent her over Niagara Falls.
• The legality of the attack was discussed in detail in correspondence between Great Britain
and the United States.
• Letter from Mr. Webster (the American Secretary of State) to Mr. Fox (British Minister at
Washington) [April 24, 1841]
• “It will be for …[Her Majesty’s] Government to show a necessity of self-defence, instant,
overwhelming, leaving no choice of means, and no moment for deliberation.”
• The permissive school regards the Caroline case as the classic formulation of customary
international law on self-defence.
• In fact the Caroline case is just an instance of practice of two countries. To be a customary
law, it needs the support of subsequent consistent State practice.
• Fear of creating a dangerous precedent is probably the reason why States seldom invoke
anticipatory self-defence in practice.
• Out of the 192 UN Members, only Israel and the US invoked it.
• Israel invoked anticipatory self-defence in “Israeli destruction of Iraqi nuclear reactor
incident” in 1981. But the SC strongly condemned it and declared it as a violation of
international norms.”
• The US initially invoked it (or in particular pre-emptive self-defence) in the “US invasion of
Iraq (2003)” but received widespread condemnation by the international community.
• The overwhelming practice of states after the emergence of the United Nations never
accepts the right of anticipatory self-defence.
• Therefore, anticipatory self-defence, as formulated in the Caroline case, is not supported
by subsequent State practice and cannot be said as forming part of the customary law of the
time.
However, where there appears to be an acceptable moral or policy reason for anticipatory
self-defence, such as the Entebbe incident to save the lives of nationals; and where
proportionate measures have been adopted relative to the threat, the community response
tends to be relatively less muted and formal condemnation by the Security council may be
avoided.
The Caroline principles thus, continue to play a role in determining the legitimacy of self-
defence and could perhaps be interpreted flexibly to allow a state to respond proportionately
to an imminent and overwhelming threat to national security.

Nuclear weapons and anticipatory self-defence

• Most writers and Governments agree that it would be too dangerous for the world
community to allow anticipatory self-defence simply because there were nuclear weapons
with modern sophisticated devices.
• Intercontinental Ballistic Missiles (ICBMs) can be destroyed by an effective Anti-Ballistic
Missile
(ABM) system.
• An ICBM normally takes 25 to 30 minutes to hit the target. Different forms of interception
can be used at different stages of the flight of the ICBM.
• The above facts and figures clearly indicate the feasibility of defensive measures even after
a nuclear missile has been launched.
• In practice, however, the main nuclear policy of the nuclear power States is the doctrine of
‘nuclear deterrence’. They primarily rely on the second strike capability.
• In this way, both sides are able to inflict ‘mutually assured destruction’ (MAD) on each other
whichever side attacks first.
• Therefore, the claim that the nuclear weapons have made the anticipatory self-defence a
necessity is obviously unfounded.

Accumulation of events theory

A suggested approach to the problem posed by an asserted right of anticipatory self-defence

is to view frequent cross-border guerrilla activities and terrorist attacks as part of an
‘accumulation of events’. If viewed as a whole, then the act of self-defence against a single
attack is no longer anticipatory. It can more readily be seen as a proportionate and necessary
response to a series of illegal acts. The practices of Israel, the United States and the UK
support such a right.
There has been cautious support for this approach which has been given by the ICJ in the Oil
Platforms case. In this case, the alleged attacks launched by Iran on US ships were held by the
ICJ to not constitute a series of armed attacks on the United States. It was using this analysis
that the Court found that elements of necessity and proportionality argued by the United
States was not met, and rejected their plea of self-defence. (para 64) This decision does
however give some legitimacy to this doctrine by recognizing that there may exist a right of
self-defence to a series of accumulated events, thus potentially expanding the scope of the
self-defence doctrine.

The ruling off the ICJ on the meaning of ‘‘armed attack’’

• “An armed attack must be understood as including not merely action by regular armed
forces across an international border, but also ‘the sending by or on behalf of a State of armed
bands, groups, irregulars or mercenaries, which carry out acts of armed forces against another
State of such gravity as to amount to (inter alia) an actual armed attack conducted by regular
forces, or its substantial involvement therein.
• But the Court does not believe that the concept of armed attack includes not only acts by
armed bands where such acts occur on a significant scale but also assistance to rebels in the
form of provisions of weapons or logistical or other support. Such assistance may be regarded
as a threat or use of force, or amount to intervention in the internal or external affairs of
other States.” (Nicaragua Case, Para 195)
In addition to narrowing the definition of an ‘armed attack’, the ICJ also stressed that, where
there is no armed attack, a third state may not take measures against a state assisting the
rebels.
However, Judge Sir Robert Jennings in his dissenting opinion held that such a restrictive and
narrow approach was ‘dangerous’ in a world where conflict is characterized by civil strife and
aid to rebels can play a powerful and destabilizing role. In such a scenario, logistical support
may itself be crucial. He held that in such circumstances that defining so strictly the conditions
for lawful self-defense would be a dangerous move. (Para 246)
Where a state has been the victim of an illegal intervention that does not amount to an
‘armed attack’, it may not employ force as a right of self-defense. However, the state does
have the right to take ‘proportionate countermeasures, including economic and political
sanctions. (Nicaragua, Para 210)
However, in its unprecedented resolutions post 9/11, the Security Council appears to
recognize that a terrorist attack by a non-state actor can constitute an ‘armed attack’,
justifying intervention against a state which is believed to have supported the terrorists.
Moreover, these resolutions suggested that, where the attack is finished, there is a right to
take ‘pre-emptive’ action to prevent future attacks, as claimed by the United States and the
United Kingdom. Thus, a right of self-defence wider than that permitted under the Caroline
principles has been potentially confirmed by the SC.
In resolutions on terrorism of September 12 and 28, the Security Council specifically
recognized the inherent right of an individual or collective self-defence against terrorist acts.
This is a departure from the general trend in International law where a state’s right to use
force against another state in response to terrorist attacks upon its nationals.
In 1985, for instance, the Security Council unanimously condemned Israeli action against the
headquarters of the PLO in Tunis in response to an attack on a secret service agent in Cyprus.
Collective self-defence
Customary International law also permits a collective right of self-defence where one state
has declared itself to be the victim of an armed attack and requests assistance from a third
state. Examples of collective self-defence in state practice: US and Australia in Vietnam; the
US in Nicaragua; Soviet interventions in Hungary (1956), Czechoslovakia (1968) and
Afghanistan (1979).
However, there has not been a detailed judicial analysis of the right of collective self-defence.
In the Nicaragua case, the Court stated that, while the assisting states need not be under any
threat itself, there must be an ‘armed attack’ on the victim state under art. 51. (page 14)
Curiously, a right of collective self-defence does not require that the assisting state is
additionally defending itself. As Judge Jennings pointed out in his dissenting opinion in the
Nicaragua judgment, the majority of the court recognized the right of collective self-defence
without inquiring whether there was any threat to the United States itself. (para 545)
Defence of nationals abroad
A controversial aspect of the prohibition on the use of force arises where a state uses force
against the nationals of another state. States have justified the use of force to protect their
nationals is also an attack on the ‘state’ itself. The contemporary assertion of a right to use
force to defend nationals arises most frequently in response to acts of terrorism, for example,
the Entebbe incident; where Israel defended its acts in flying transport aircraft and soldiers
into Uganda to rescue hijacked Israeli passengers as ‘military action to protect its nationals’.
However, in the Tehran hostages case, while the ICJ was not bound to comment on the
legality of the operation at international law, the court as part of its dictum held that that the
use of force to protect nationals, even where there was marked sympathy for the United
States’ frustration over the lengthy detention, is likely to be seen by the ICJ as unacceptable
other than a last resort. (para 93)
An examination of other state practice in this regard indicates that the asserted right to use
force to protect nationals is often a ruse to achieve other objectives. Examples: The US
invasion of Grenada in 1983, where it was alleged that some American students were under
threat; The invasion of Panama in 1989, where the it was justified on grounds that it was done
as an act of defence of American nationals. One American had been killed, and several others
harassed; the bombing of the Libya was argued by the US as self-defence against an alleged
Libyan role in an attack on US servicemen in West Berlin. In each case, it might be observed
that, even if there was a right to use force to protect nationals, the force used appears to be
disproportionate to the harm.
Certain states have often rejected this right of self-defence on the ground that the purported
right is in fact, typically employed by strong states against weaker ones.
State practice generally supports a limited right to use against another state to protect
nationals, where the force is necessary to save their lives and proportionate to this objective.
Once this objective is achieved, the force must be discontinued and the action must be
reported to the Security Council.
Necessity and proportionality of self-defence
In the Nicaragua case, the ICJ has repeatedly stressed the importance of the twin
requirements of necessity and proportionality as being the core principles of the right of self-
defence. (paras 94,105)
In the Oil Platforms case, the Court rejected US claims that that its attacks on merchant
shipping in the Persian Gulf during the Iran-Iraq war were justified acts of self-defence at
customary international law. It found that the attacks on oil platforms were not necessary to
respond to the alleged incidents and that the damage done was not proportionate to the
attack on a US-flagged ship. (para 77)
In the Nuclear weapons case, the Court while not being able to come to a customary rule
regarding the threat or use of nuclear weapons in International law, did confirm that the test
for proportionality of self-defence must ‘also meet the requirements of the law applicable in
armed conflict’. (para 42)
Retorsion and reprisals
International law recognizes a right of retorsion where a state adopts an unfriendly and
damaging, but lawful act as a form of retaliation against the similiarly lawful and injurious acts
of another state. Examples: severance of diplomatic relations; restrictive control over or
expulsion of aliens; economic and other restrictions.
At the same time, International law no longer permits the use of force to carry out reprisals
in retaliation for the unlawful act of another state. Art. 2(4) of the Charter overrides the earlier
law in the Naulilaa arbitration between Portugal and Germany in 1928, where the tribunal
conceded a right to use force where it is proportional to the original unlawful act.
Contemporary law is now more accurately reflected in the Security Council condemnation of
‘reprisals’ as incompatible with the purposes and principles of the United Nations in response
to the Habib Fort incident, where the British bombed the Habib Fort in Yemen as a measure
of retaliation against attacks being carried out by Yemeni forces against Bedouin flocks in the
Federation of Saudi Arabia.
The Beirut raid on 13 civil airplanes on the tarmac in Lebanon by Israel as an act of retaliation
against the attack on an E1 A1 airplane at Athens by Palestinian guerillas was unanimously
condemned by the Security Council for ‘its premeditated military action in violation of its
obligations under the Charter.’
The Declaration on Friendly Relations of 1970 states the accepted rule that states have a duty
to refrain from acts of reprisal involving the illegal use of force.
The position that emerges thus is that a state may use force in the exercise of the right of self-
defense, but may not lawfully use force either in retorsion against a legal act or retaliation
against an illegal one.
Humanitarian Intervention
International law has generally adopted a principle of non-intervention as a corollary of the
principle of state sovereignty. Intervention may take many forms- economic, political and
cultural, and may be direct or indirect. Where the intervention involves a use of force, it will
also be a breach of article 2(4) of the UN Charter.
The Nicaragua case held that the principle of non-interference of any kind in a state’s internal
affairs was a duty of every state, as laid down in the Declaration on Friendly Relations, 1970,
to be customary international law. This included armed intervention and all other forms of
interference or attempted threats against the personality of the state or against its political,
economic and cultural elements; the use of political, economic or any other kinds of measures
to coerce a state to obtain advantages of any kind from it; organizing, assisting, fomenting,
financing, inciting or tolerating subversive, terrorist or armed activities directed towards the
violent overthrow of the regime of another state; interfering in civil strife in another state.
(paras 202-209) However, the Court here did hold that the arming and training of rebel forces
against the government of Nicaragua could amount to the threat or use of force, but the
‘mere supply of funds’ to the rebels was not. (para 203)
International law has generally treated civil wars as an internal matter, so it is normally for
the government to decide how to deal with insurgent groups. The accepted rule is that a state
may provide assistance in suppressing rebels at the request of the government and will not
have violated the duty of non-interference by doing so.
However, there is little clarity as to whether the request in question is a valid one or not. For
example, it is argued that the Governor General of Grenada requested US to intervene when
he was not authorized to do so; or that elected head of state, who requested the United
States assist in ousting the Noriega regime in Panama had been denied access to the
government in any case.
Even in the Nicaragua case, the ICJ found that no such request for assistance had been made
by El Salvador, Honduras and Costa Rica at the relevant time, holding that there was no
evidence of the states in question being under a threat or in a position to ask for assistance
from another state.(paras 199, 223)
Another important incident in the area of humanitarian intervention would be the NATO
bombings over Kosovo from March to June 1999. This was the first time states, particularly
Belgium and the United States, had openly justified their actions by the need to avert a
humanitarian catastrophe.
In order to protect ethnic Albanians from violence at the hands of Serb forces, 38,000 sorties
were conducted by NATO planes over Kosovo and the surrounding areas over a 78-day
campaign. Yugoslavia claimed that these bombings led to the death over 1000 civilians.
These bombings set the stage for a debate over the legality of humanitarian interventions
with regard to article 2(4). The legal justifications for these bombings are set out by the
member states in their pleadings in the Legality of the Use of Force case, which was brought
by Yugoslavia before the ICJ. Belgium argued, adopting a narrow interpretation of article 2(4),
that there was no threat to the political independence or territorial integrity of Yugoslavia
and that the bombings were confined to protect the Albanians.
While the ICJ was unable to decide the legal issues raised in this case because it found that it
had no jurisdiction to hear claims made by Serbia & Montenegro, some guidance as to a state
response can be ascertained by the rejection by the Security Council of a resolution
condemning NATO’s use of force. It welcomed the withdrawal of the Yugoslavian forces and
established the basis for states and international organizations to create a military and civil
presence in Kosovo under UN auspices.
In this regard, the legal advice provided to the UK’s House of Commons Foreign Affairs
Committee enquiry into the Kosovo Crisis in 2000 provides a useful summary of differing
juristic opinions.
Professor Brownlie and Mr. Apperley argued that the alleged right to use force individually or
jointly to safeguard human rights was incompatible with the UN Charter and not supported
by state practices.
Professor Greenwood, representing a minority consisting of the views of Judge Higgins and
Professor Reisman among others, argued that international law recognizes a limited right of
humanitarian intervention in cases of overwhelming humanitarian necessity. He pointed to
the human rights underpinnings of the UN system and argued that state practice actually
supports this right.
Professors Chinkin and Lowe represent the ‘middle’ view that customary law does not yet
permit the use of force for humanitarian reasons but that there is growing support for the
doctrine.
Limited support for the view that customary international law actually permits humanitarian
intervention is undoubtedly to be found in recent practices of the Security Council in
authorizing interventions for humanitarian purposes.
In order to protect the Kurds at the end of the Gulf War, SC Resolution 688 of 5 April 1991
required Iraq to allow access to humanitarian organizations and called on member states to
contribute to these ‘humanitarian efforts’; On 3 Dec. 1992, the SC took an unprecedented
step in linking the humanitarian situation in Somalis to Chapter VII enforcement action by
finding that the situation was a ‘threat to international peace and security’.
WEEK 12

DISPUTE SETTLEMENT

International Dispute Settlement

“Peaceful settlement of disputes”—key phrase in modern international law. International law

probably above all preoccupied with maintenance of peace (justice and fairness are also
concerns, but subordinated to peace)

In the international arena, the forms and procedures for dispute settlement generally based
on consent of parties (this is different from domestic context, especially municipal courts—
can’t say “sorry, don’t want to go to court”)

Article 2(3) of the UN Charter: “All members shall settle their international disputes by
peaceful means in such a manner that international peace and security and justice are not
endangered.”

1970 Declaration on Principles of International Law Concerning Friendly Relations and Co-
operation among States: “States shall accordingly seek early and just settlement of their
international disputes by negotiation, inquiry, mediation, conciliation, arbitration, judicial
settlement, resort to regional agencies or arrangements or other peaceful means of their
choice.”

These same methods stipulated in Article 33(1) of UN Charter (for disputes likely to threaten
maintenance of international peace and security). And Article 37(1) says states shall refer to
the Security Council disputes likely to endanger international peace and security if can’t reach
a resolution.

But again, all methods only operate upon the consent of the particular states—no inherent
hierarchy of methods, no specific method is required in any given situation.

Basically, the techniques of conflict management and dispute resolution fall into 2 categories:
diplomatic procedures and adjudication. Diplomatic procedures: attempts to resolve
differences either by the disputing parties themselves or with the aid of other entities by the
use of discussion and fact-finding methods. Adjudication procedures: involve the
determination by a disinterested 3rd party of the legal and factual issues involved, either by
arbitration or by the decision of judicial organs.

Diplomatic Adjudication
Binding Non-binding
Negotiation Arbitration
Mediation Litigation in courts/tribunals/international
courts
Inquiry & Conciliation International Court of Justice, International
Tribunal for the Law of the Sea.
In modern period, there is no sharp line between arbitration and judicial settlement.
Generally, term “judicial settlement” is applicable to any international tribunal settling
disputes involving states in accordance with international law.
The permanent institutions developed historically from arbitral experience. It’s now common
to see the development of “integrated systems” of dispute resolution that are able to do both
arbitration and more formal judicial process.

So even though technically distinct, arbitration + adjudication grouped together, more so than
in domestic legal systems (distinction between judicial adjudication/ litigation and ADR)

Different means of dispute settlement:

1. Negotiation: – The settlement of the international disputes by the disputant states
themselves by negotiation is said to be settlement of the disputes by negotiation. In
other words when there a dispute arises between two or more states then to avoid
the chances of war or violence they tend to conduct negotiation for the matters to be
settled. The negotiation is to be taken by the political representatives of the disputant
countries, without involving any third or non-concerned country.
2. Good-offices: – The act or arrangements taken by a third party to bring disputant
parties for negotiation or to settle dispute between them by any peaceful means is
said to be Good-offices. In case of Good-offices the third merely renders services to
bring the disputant parties to peace full means of settlement of disputes. Here the
third party does not give any suggestions or take part in the meetings as to be held
between the disputant parties. Shortly speaking, in case of good offices whenever the
parties to dispute come to peace full of settlement of dispute the duty of the third-
party finishes.
3. Mediation: – The act of participating and in the discussions and giving suggestions to
settle a dispute between two parties by a third party is said to Mediation. In other
words, mediation is the method to settle a dispute where any third party actively takes
part in the sessions of dialogues or negotiations held between disputant party as to
resolve the dispute. In case of mediation the mediator should consider the matter of
compromise between the parties rather to encourage the strict letter of law.
4. Inquiry: – The process to ascertain the facts of disputes by a commission of imperial
investigators is said to inquiry. This mean is intended to find out the questions of law
and mixed questions of law and fact involved in a dispute. The only function of the
commission is to bring in light those facts, which are the root cause for the alleged
dispute, and to investigate the question of law and mixed questions of law and fact.
5. Conciliation: – The process of referring a dispute to a commission; for the purpose of
finding out facts and to prepare a report containing proposals for the settlement of
that dispute, is called conciliation. In case of conciliation the commission is to take two
tasks, at first, it shall ascertain the facts of the dispute and secondly, it shall prepare a
report which shall reveal that the possible measures to settle the dispute. But the
proposals prepared by the commission have no binding force upon the parties. The
parties can disagree with the proposals.
6. Arbitration: – The process of referring the dispute; by the mutual consent of the
parties to a body of persons or to a tribunal for a legal decision is called as arbitration.
The essential ingredient of arbitration is the consent of disputant parties to the
dispute. In other words, the referring of the dispute to a Court of Arbitration is
 dependent on the sweet-well of the parties. International law recognizes a court for
arbitration known as Permanent Court of Arbitration. But in fact, it is neither
permanent nor a court.
7. Judicial Settlement: – The process of settling a dispute; by the International Tribunal
in the light of the provisions of International Law, is said to be Judicial Settlement. For
Judicial Settlement, there is a judicial organ in international law, known as
International Court of Justice. Both the award given by the arbitration tribunal and
decision given by the International Court of Justice are comes in the ambit of Judicial
Settlement. Like in arbitration, in case of referring the dispute to the International
Court of Justice the consent of both the parties are necessary to be given.
International Court of Justice shall take its proceeding in the light of the rules of
International law, and its procedure is governed by a statute known as the Statute of
International Court of Justice. International Court of Justice plays a very important rule
in the settlement of international disputes.
8. Security Council: – A dispute may be settled by a principal organ of the United
Nations, known as Security Council. The Council is consisted of fifteen members. Five
members are permanent while the remaining ten members are non-permanent
members. Wide powers have been entrusted to the Council for the settlement of the
disputes, which tend to endanger world peace and security. There is a number of
measures to be taken by the Council for the settlement of the disputes.
9. General Assembly: – General Assembly is another principal organ of the United
Nations. The Assembly has no specific means to settle the dispute, rather it has
general powers to settle the international dispute. It has the power to discuss and to
suggest better means for the peaceful settlement of the disputes.

Nuremberg Trials
(don’t rely too much on this)
In the wake of World War II, the victorious Allied powers—notably the U.S., Great Britain,
Soviet Union and France—established and authorized an International Military Tribunal to
prosecute high-ranking Nazi officials for war crimes and crimes against humanity, among
other alleged offenses.

The jurisdiction afforded to the Tribunal was somewhat unique because it covered “offenses
[that] had no particular geographical location” (War Crimes: Nuremberg Trials, 2007) . These
offenses were crimes against human dignity as well as crimes against specific individuals. It
represented a concrete recognition that a violation of human rights had occurred that were
equally as important if not more important than other well-defined transgressions against the
laws of war. Eventually, 19 other nations joined in supporting the authorization of the
Tribunal.

The trials that followed, known as the Nuremberg trials after the German city in which they
were held, considered the charges against 24 Nazi leaders. It took 216 court sessions over a
one year period for verdicts to be reached. In the end, three defendants were acquitted, three
were imprisoned with 10-20 year sentences, three were given life prison sentences, twelve
were condemned to be hanged, and two were exempted from prosecution (one had
committed suicide, the other was deemed mentally unfit for trial) (War Crimes: Nuremberg
Trials, 2007).

The defendants made two arguments against the charges. First, they claimed that only states
and not individuals could be held responsible for the types of crimes of which they had been
accused (War Crimes: Nuremberg Trials, 2007). The court’s rejection of this argument set a
landmark precedent, establishing that rights could be discussed and enforced on the level of
the individual regardless of the involvement of states, and that state authority could not be
used to shield individuals from criminal accountability.
The second argument challenged the very basis of the charges, asserting that several of the
offenses should not be considered crimes since they were criminalized in law (through the
various UN conventions described in this Brief) only after they had been committed, i.e. ex
post facto (literally, “after the fact”) (War Crimes: Nuremberg Trials, 2007). The court’s
rejection of this argument, broadly speaking, hinged on the idea that these crimes had already
been implicitly covered under pre-existing international law and bolstered the claims of
human rights advocates the such rights should be considered settled international law, or jus
cogens.

ITLOS grants request for provisional measures in the “ARA LIBERTAD” case (Argentina v.
Ghana)

On 15 December 2012, the International Tribunal for the Law of the Sea (“ITLOS” or the
“Tribunal”) granted Argentina’s request for provisional measures in the “ARA Libertad” case.
In so doing, the Tribunal ordered that Ghana unconditionally release the Argentine frigate
ARA Libertad and its crew from the Ghanaian port of Tema where they had been held since 2
October 2012.

Background to the “ARA Libertad” dispute

Ghana’s retention of the Argentinean military vessel, the ARA Libertad, is the latest episode
in a decade-old struggle between Argentina and its creditors who seek money owing under
defaulted Argentinian bonds. In 2001, Argentina defaulted on approximately US$95 billion of
debt, the largest default in history. The majority of its creditors (some 93%) accepted a
restructuring of their loans in 2005 and 2010, reportedly receiving approximately 25-35% of
their original investment. However, some hold-out creditors refused this arrangement, and
have litigated against Argentina for payment of the full amount.

Elliot Capital Management (“ECM”) is one of the leading hold-out investors, and has been
awarded judgments against Argentina in courts in the United States and United Kingdom.
NML Capital Limited (“NML”) is a subsidiary of ECM. In December 2006, the United States
District Court for the Southern District of New York entered judgment in favour of NML for
over US$284 million. NML sought to have this decision enforced in the UK, and in July 2011
the UK Supreme Court upheld that judgment.
On 2 October 2012, NML was granted an injunction in the Ghana High Court to detain the
ARA Libertad as collateral against the amount owing under the New York judgment. This is
the 29th Argentinian asset impounded by hold-out investors – all 28 prior attempts on
Argentinian assets (including the presidential aircraft) have been successfully avoided.

The ARA Libertad and its seizure

The ARA Libertad is a tall ship used by the Argentine Navy for cadet training trips, and was
described by Argentina in the hearing before ITLOS as Argentina’s “Ambassador” on the
world’s seas. In June 2012, the ARA Libertad departed Argentina on a “good-will tour” of
thirteen countries in the South Atlantic, Caribbean, Europe and Africa. It was scheduled to
return to Argentina on 8 December 2012.

The ARA Libertad arrived at the port of Tema in Ghana on 1 October 2012 as part of an official
visit. It was scheduled to depart the port on 4 October 2012. However, on 2 October 2012,
the Ghana High Court (Commercial Division) granted NML an interlocutory injunction and
interim preservation order against the vessel. The Court ordered that the vessel be held at
the port of Tema, unless Argentina paid a bond of US$20 million for its release. This bond was
not paid, and the vessel remained at the port staffed by a 45-person skeleton crew. On 24
October 2012, an Air France flight was chartered (due to fears that an Aerolineas Argentinas
or military airplane could also be seized by court order) to return the other 281 crew members
to Argentina.

Challenges to Ghanaian jurisdiction

On 5 October 2012, Argentina filed a motion challenging the jurisdiction of the Ghana High
Court and requesting an annulment of the injunction. Argentina argued that the vessel was
protected by sovereign immunity as a military asset under the 1961 Vienna Convention on
Diplomatic Relations. This application was dismissed on 11 October 2012, the High Court
finding that Argentina had waived any immunity under the terms of the 1994 Fiscal Agency
Agreement (“FAA”) pursuant to which the bonds were issued. The FAA provided that to the
extent Argentina or any of its assets were entitled to any immunity from suit, Argentina
“irrevocably waived such immunity to the fullest extent permitted by the laws of such
jurisdiction”. Argentina made a further attempt to challenge jurisdiction, seeking a procedural
order changing its status from an “unconditional” to a “conditional” defendant. This
application was also rejected on 21 November 2012.

Diplomatic efforts
Argentina made a number of diplomatic efforts to secure the release of the ARA Libertad in
October 2012. An Argentinian State delegation met with Ghanaian officials in mid-October,
but was unsuccessful in its efforts to regain the vessel. On 22 October 2012, Argentinian
Foreign Minister Timerman began lobbying at the United Nations. Timerman met with acting
Security Council President Gert Rosenthal, who noted that the dispute was not a matter for
the Security Council.

Relocating the vessel

A dispute also arose in relation to the Ghana Port Authority’s attempt to relocate the vessel
from berth 11 to berth 6, ostensibly seeking to relieve congestion at the port. The Port
Authority filed a motion to this effect on 19 October 2012, and the Ghana High Court
authorised the move on 5 November 2012. Pursuant to that order, the Port Authority sought
to move the vessel on 7 November 2012. However, Argentinian sailors reportedly threatened
to open fire if such an attempt was made. In response, the Port Authority cut off electricity
and water to the vessel, which was later re-established on 14 November 2012. The ARA
Libertad was not relocated, and a contempt of Court Order against the captain of the ARA
Libertad was issued following the events of 7 November 2012.

The Case before ITLOS

Argentina and Ghana are both parties to the United Nations Convention on the Law of the
Sea (“UNCLOS” or the “Convention”). Upon ratification of the Convention, Argentina had
entered a declaration excluding the jurisdiction of the Tribunal to hear disputes concerning
“military activities by government vessels … engaged in noncommercial service”. On 26
October 2012, however, Argentina modified its declaration, effectively opting back in to the
jurisdiction of the Tribunal over such matters.

Under Article 287 of UNCLOS, when signing, ratifying or acceding to the Convention, a State
is free to choose, by way of a written declaration, one or more prescribed means for the
settlement of disputes concerning the interpretation or application of the Convention. These
means include ITLOS and the International Court of Justice. However, whilst Argentina
accepted the jurisdiction of ITLOS first in order of preference for the settlement of such
disputes, Ghana had not chosen any preference of means for the settlement of such disputes.
Therefore, in accordance with the default procedure contained in Article 287(5) of UNCLOS,
the dispute could be submitted only to arbitration in accordance with Annex VII of the
Convention. On 30 October 2012, Argentina submitted its Notification and Statement of
Claims to Ghana, instituting arbitral proceedings in relation to the detention of the ARA
Libertad pursuant to Annex VII of the Convention.

Pending the constitution of an Annex VII arbitral tribunal, Argentina elected to make a request
for provisional measures. Under Article 290(5) of UNCLOS:
“Pending the constitution of an arbitral tribunal to which a dispute is being submitted under
this section, any court or tribunal agreed upon by the parties or, failing such agreement within
two weeks from the date of the request for provisional measures, the International Tribunal
for the Law of the Sea … may prescribe, modify or revoke provisional measures in accordance
with this article if it considers that prima facie the tribunal which is to be constituted would
have jurisdiction and that the urgency of the situation so requires.”

Accordingly, on 14 November 2012, Argentina requested ITLOS to adopt the following

provisional measure: “that Ghana unconditionally enables the Argentine Warship Frigate ARA
Libertad to leave the Tema port and the jurisdictional waters of Ghana and to be resupplied
to that end.”

In its Notification and Statement of Claims, Argentina requested ITLOS to declare that Ghana
had violated a number of its international obligations by detaining the vessel, adopting
judicial measures against it and not allowing it to refuel. First, Argentina submitted that Ghana
had violated its obligation to respect the immunities from jurisdiction enjoyed by warships
under Article 32 of UNCLOS and Article 3 of the 1926 Convention for the Unification of Certain
Rules concerning the Immunity of State-owned Vessels, as well as customary international
law. Secondly, Argentina’s Notification and Statement of Claims argued that Ghana had
prevented the exercise of the right of the ARA Libertad to “sail out of the waters subject to
the jurisdiction of the coastal State and the right of freedom of navigation”, pursuant to
Articles 18, 87 and 90 of the Convention.

The Tribunal’s Order of 15 December 2012

In its Order of 15 December 2012 (the “Order”), the Tribunal determined that the Annex VII
tribunal to be constituted would have prima facie jurisdiction over the dispute. The Tribunal
found that a difference of opinion existed between Argentina and Ghana as to the
applicability of Article 32 of the Convention. Consequently, this indicated a dispute between
the parties concerning the interpretation or application of UNCLOS, and thus afforded a basis
for the Annex VII tribunal to exercise prima facie jurisdiction.

In a separate Declaration, Judge Paik noted that there was a “rather low threshold” for
establishing prima facie jurisdiction (but that this was counter-balanced by stricter
requirements, such as urgency and irreparability). In their Joint Separate Opinion, Judges
Wolfrum and Cot noted that there were “valid considerations” which would preclude the
Annex VII arbitral tribunal from deciding that prima facie it had jurisdiction. However, in their
view, Ghana’s position was “fraught with contradictions” and was estopped from objecting
to the provisional measures prescribed, having given its official assurances to Argentina for
the visit of the ARA Libertad.
As to the urgency of the situation, the Tribunal found that the attempts by the Ghanaian
authorities on 7 November 2012 to board the vessel and move it by force to another berth,
demonstrated the “gravity” of the situation and underlined the “urgent need” for the
institution of provisional measures. Judge Paik noted that any dispute involving a warship
“has the potential to disrupt peace and security”, and the fact that this dispute involved an
unarmed training vessel “did not affect the gravity of the situation”.

Having established both prima facie jurisdiction and that the urgency of the situation required
the prescription of provisional measures, the Tribunal unanimously prescribed the following
provisional measure under Article 290(5) of the Convention, such that:
“Ghana shall forthwith and unconditionally release the frigate ARA Libertad, shall ensure that
the frigate ARA Libertad, its Commander and crew are able to leave the port of Tema and the
maritime areas under the jurisdiction of Ghana, and shall ensure that the frigate ARA Libertad
is resupplied to that end.”

Pursuant to the Rules of the Tribunal, Argentina and Ghana are required to submit an initial
report and information on compliance with the provisional measure prescribed no later than
22 December 2012.

Compliance
Ghana has now released the ARA Libertad pursuant to the Tribunal’s Order. On 19 December
2012, the Supreme Court of Ghana invalidated the decision of the Ghana High Court granting
the injunction. A statement issued by the Deputy Minister of Foreign Affairs noted that Ghana
had never considered itself to be in a dispute with Argentina, but that the dispute is between
Argentina and a private foreign company. The statement also noted that the Government of
Ghana had been bound to respect the decision of the High Court to detain the vessel, due to
the separation of powers and independence of the judiciary. The vessel is expected to arrive
in Mar del Plata on 9 January 2013.

Comment
Argentina’s success in obtaining this Order from ITLOS demonstrates how UNCLOS, through
the prescription of provisional measures, can provide a practical and effective tool for States
in situations of urgency where a dispute arises out of violations of the Convention.

As to Ghana’s argument that the executive was to have regard to the independence of the
judiciary, as noted in the Separate Opinions of Judges Cot, Lucky, Rao and Wolfrum, such an
argument cannot absolve Ghana from its State responsibility under international law. A State
cannot hide behind its domestic law in order to justify its failure to meet its international
obligations.

Complementarity Principle
General Principle
The establishment of international criminal tribunals creates the problem of coordinating
their action with that of national courts. This problem is manifest when both international
and national courts are empowered to prosecute the same crimes. Deciding which courts
take precedence raises difficult questions of sovereignty and international relations. Clear
guiding principles are necessary to resolve the delicate issue of whether an international or
national court takes priority in given case. The principle of complementarity provides such
guidance.

The principle of complementarity embodies the concept that a court may only assert
jurisdiction over a case that another court has not already investigated or prosecuted. The
subsidiary court generally enjoys priority in the exercise of jurisdiction over a case, and the
chief court only exercises its complementary jurisdiction in exceptional circumstances. In
international law, the concept of complementarity primarily applies in the context of the
exercise of jurisdiction by the International Criminal Court.

The Jurisdiction of the ICC

The International Criminal Court is the first standing tribunal empowered to prosecute
violations of international humanitarian law. The permanent and universal nature of the ICC
distinguishes it from similar, temporary judicial bodies, such as the International Criminal
Tribunal for the Former Yugoslavia. The Rome Statute of the International Criminal Court,
which established the ICC, was adopted on July 17, 1998 by a treaty, following a conference
convened by the U.N. General Assembly. The ICC is located at The Hague in the Netherlands.
The ICC does not prosecute most major crimes of international concern. Its jurisdiction is
limited to crimes of genocide, crimes against humanity, war crimes, and the crime of
aggression. Article 6 of the Rome Statute defines genocide as follows: “any of the following
acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or
religious group as such: (a) killing members of the group; (b) causing serious bodily or mental
harm to members of the group; (c) deliberately inflicting on the group conditions of life
calculated to bring about its physical destruction in whole or in part; (d) imposing measures
intended to prevent births within the group; (e) forcibly transferring children of the group to
another group.” Article 7 of the Rome Statute contains a list of specified acts that constitute
crimes against humanity. Some of these acts include murder, extermination, enslavement,
torture, rape, and persecution. Article 8 of the Rome Statute provides a detailed list of war
crimes subject to prosecution before the ICC, which includes serious breaches of the Geneva
Conventions. Finally, the Rome Statute does not define the crime of aggression. Thus, the
ICC will not be able to prosecute this crime until the Rome Statute has been amended to
define it properly.

The jurisdiction of the ICC may be invoked in three ways. First, a party may refer an alleged
crime to the ICC Prosecutor. Second, the U.N. Security Council may refer alleged crimes to
the ICC Prosecutor. And third, the ICC Prosecutor may initiate an investigation into an alleged
crime. But under the first and third avenues listed above, the ICC may only exercise
jurisdiction if the state on whose territory the conduct occurred or the state of the nationality
of the accused person is a party to the Rome Statute. Notably, many world powers are not
parties to the Rome Statute. These nations include China, Egypt, India, Indonesia, Iran,
Pakistan, Russia, and the United States. Non-party states may, however, accept the
jurisdiction of the ICC ad hoc.

Complementarity and the Jurisdiction of the ICC

The jurisdiction of the ICC is further limited by the concept of complementarity. Unlike ad
hoc criminal tribunals like the ICTY and the ICTR, the ICC acts in a role complementary to
national criminal jurisdictions. Reasons for this unique organization include limiting the
number of cases referred to the ICC and respecting national sovereignty. The principle of
complementarity is spelled out in paragraph 10 of the Preamble to the Rome Statute and in
Articles 1, 15, 17, 18, and 19 of the Rome Statute.

Under the principle of complementarity, the ICC is barred from asserting jurisdiction over a
crime whenever a national court exercises its jurisdiction over the crime and one of the
following conditions is met: (i) the state has jurisdiction under its national law; (ii) the case is
being investigated or prosecuted by the state’s authorities, or those authorities have properly
decided not to prosecute; (iii) the case is not of sufficient gravity to justify action by the
ICC. Thus, under the principle of complementarity, the ICC defers to a state’s exercise of
jurisdiction over one of the crimes enumerated in the Rome Statute. But under the principle
of complementarity, the ICC may assert jurisdiction over one of those crimes even if a case
concerning the crime is pending before national courts. For the ICC to do so, two conditions
must be met. First, the ICC may exercise jurisdiction where the state is unable or unwilling
genuinely to carry out the investigation or prosecution. This justification for the exercise of
ICC jurisdiction includes decisions by national authorities not to prosecute where that
decision results from the state’s unwillingness or inability genuinely to prosecute the
crime. And second, the case must be of sufficient gravity to justify the exercise of the ICC’s
jurisdiction.

Because the ICC may only override national criminal jurisdiction when national authorities are
“unable” or “unwilling” to investigate and prosecute, the essence of the principle of
complementarity lies in the definition of those terms. Under Article 17 of the Rome Statute,
a nation is “unwilling” when: (i) national authorities are shielding the accused from criminal
responsibility; or (ii) national authorities have unduly delayed the proceedings, manifesting
an intent to not bring the accused to justice; or (iii) the national proceedings are not
conducted independently or impartially, manifesting an intent to circumvent justice. In
addition, a nation is “unable” to prosecute when, primarily as a result of the collapse of its
judicial system, it is not in a position to: (i) detain the accused or have him surrendered by the
authorities holding him in custody; or (ii) collect the necessary evidence; or (iii) carry out
criminal proceedings. The principle of complementarity applies regardless of the manner in
which ICC proceedings are initiated, whether by a state party, the U.N. Security Council, or
the ICC Prosecutor.

The principle of complementarity found in the Rome Statute of the ICC ensures respect for
national judicial systems and incentivizes them to operate in a fair and effective manner. It
both empowers the ICC and carefully limits that power. Guided by the principle of
complementarity, the ICC investigates and prosecutes international crimes when a domestic
legal system cannot or will not, expanding the reach of justice on the world stage.

INTERNATIONAL TRIBUNALS

THE NEED

• The World War II resulted in large-scale destruction, devastation, mass murders,

genocide, rape, and innocent killings, where all rules, principles and laws of
humanity were dishonored and violated.
• The situation was as if there was no law and all chaos in the international justice
system.
• The need in the real sense was to set up tribunals for prosecuting those who were
liable for such mass destruction and innocent killings, murder, mutilation and rape. It
was further required to deter future criminals and set an example so that no such
holocaust happens ever again.
• No treaty law for prosecution of international crimes existed then. There was
customary international law that made war crimes punishable. A new category of
international crimes called ‘crimes against humanity’ was identified, but there was
no international machinery to try such persons responsible for committing war
crimes and crimes against humanity.
Therefore, the need was felt to establish international military tribunals at those places
where the destruction was at the optimum.

NUREMBERG TRIAL

• It was the first time that the crimes against humanity were prosecuted at the IMT.
• On June 26, 1945 representatives of the Governments of Great Britain, France,
Soviet Union and the US, met in London to decide on a common cause of action with
respect to the trial of the major European war criminals.
• They signed the Agreement for the Prosecution and Punishment of the Major War
Criminals of the European Axis on August 8, 1945. The Agreement was accompanied
by the charter of International Military Tribunal (also called the London charter),
which conferred jurisdiction on the International Military Tribunal at Nuremberg.
• It was decided that one judge and one alternate judge would be appointed from
each prosecuting state. On the whole it had four permanent judges and four
 alternate judges appointed by each of the powers and the prosecutors were also
appointed by the four powers.
• The Nuremberg Tribunal had jurisdiction to try and punish those who were guilty of
war crimes, crimes against peace and crimes against humanity.

• Since the crimes against humanity were not known earlier and were new, the
legitimacy of jurisdiction of the tribunal was questioned on the principle of nullum
crimen sine lege and nulla peona sine lege, i.e. there can be no crime without pre-
existing law and no punishment without law, respectively.
• The arguments regarding the illegality of tribunals were refuted in the judgment and
it was observed by the tribunal that killing, torture and humiliating innocent people
are acts condemned by the value judgments of all civilized men, and are punishable
by every civilized municipal legal system.

CONTRIBUTIONS

• Developed the principle of individual criminal responsibility

• Developed new category of international crimes- crimes against humanity
• IMTs applied rules of international law
• Later led to proposals for permanent international criminal court

INTERNATIONAL COURT OF CRIMINAL LAW

• Setting up of International Military Tribunal at Nuremberg

• Setting up of International Military Tribunal at Tokyo
• Establishment of International Criminal Tribunal for former Yugoslavia
• Establishment of International Criminal Tribunal for Rwanda

INTERNATIONAL CRIMES

• Crimes Against Humanity

• Crimes Against Peace

• War Crimes
(Concept of Universal Jurisdiction and overlapping International Criminal Jurisdiction

ESTABLISHMENT OF THE ICC

• The International Criminal Court (ICC) is the first ever permanent, treaty based
international criminal court established to promote the rule of law and ensure that
the gravest international crimes do not go unpunished.
• The ICC was established by the Rome Statute of the International Criminal Court on
July, 17, 1998 when 120 states participating in the “United Nations Diplomatic
Conference of Plenipotentiaries on the Establishment of the International Criminal
Court” adopted the Statute.
 • The Rome Statute (the Statute) sets out the Court’s jurisdiction, structure and its
functions
• The 60th instrument of ratification was deposited with the Secretary General on April
11, 2002. And the Statute was entered into force on July 1, 2002.
• Anyone who commits any of the crime under the Statute and within the jurisdiction
of the court after July 1, 2002 will be liable for prosecution by the Court (temporal
jurisdcition)

JURISDICTION

The court has four kinds of jurisdiction-

• Subject-matter Jurisdiction
• Temporal Jurisdiction
• Territorial Jurisdiction
• Personal Jurisdiction

ROME STATUTE

Article 1: The Court

An International Criminal Court ("the Court") is hereby established. It shall be a permanent
institution and shall have the power to exercise its jurisdiction over persons for the most
serious crimes of international concern, as referred to in this Statute, and shall be
complementary to national criminal jurisdictions. The jurisdiction and functioning of the
Court shall be governed by the provisions of this Statute.

SUBJECT MATTER JURISDICTION

Crimes within the jurisdiction of the Court

The jurisdiction of the Court shall be limited to the most serious crimes of concern to the
international community as a whole. The Court has jurisdiction in accordance with this
Statute with respect to the following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.

• International Drug Trafficking

• International Terrorism
• Human Trafficking
• International Money- Laundering
• Arms Trafficking
• Cyber Crimes and Cyber terrorism
• Use of Nuclear Weapons
• Willful Damage to Environment

GENOCIDE
For the purpose of this Statute, "genocide" means any of the following acts committed with
intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical
destruction in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

CRIMES AGAINST HUMANITY

For the purpose of this Statute, "crime against humanity" means any of the following acts
when committed as part of a widespread or systematic attack directed against any civilian
population, with knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental
rules of international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or
any other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national,
ethnic, cultural, religious, gender as defined in paragraph 3, or other grounds that are
universally recognized as impermissible under international law, in connection with any act
referred to in this paragraph or any crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;
(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or
serious injury to body or to mental or physical health
WAR CRIMES
For the purpose of this Statute, "war crimes" means:
(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the
following acts against persons or property protected under the provisions of the relevant
Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military
necessity and carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the
forces of a hostile Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair
and regular trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed
conflict, within the established framework of international law

In the case of an armed conflict not of an international character, serious violations of

article 3 common to the four Geneva Conventions of 12 August 1949, namely, any of the
following acts committed against persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed hors de combat
by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and
degrading treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous
judgement pronounced by a regularly constituted court, affording all judicial guarantees
which are generally recognized as indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus
does not apply to situations of internal disturbances and tensions, such as riots, isolated and
sporadic acts of violence or other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an
international character, within the established framework of international law,

CRIMES OF AGGRESSION

. For the purpose of this Statute, “crime of aggression” means the planning, preparation,
initiation or execution, by a person in a position effectively to exercise control over or to
direct the political or military action of a State, of an act of aggression which, by its
character, gravity and scale, constitutes a manifest violation of the Charter of the United
Nations.
2. For the purpose of paragraph 1, “act of aggression” means 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.

TRIGGERING MECHANISM OF ICC

Article 13 is very important with respect to jurisdiction of the court. It provides that the
court shall exercise jurisdiction in following three situations-
1. When a situation is referred to the Prosecutor by a State Party, in which one or
more of such crimes appears to have been committed in accordance with article 14;
2. When a situation is referred to the Prosecutor by the Security Council acting under
Chapter VII of the Charter of the United Nations in which one or more of such crimes
appears to have been committed; or
The Prosecutor initiates an investigation, proprio motu or otherwise under Article 15, in
respect of such a crime

POWERS OF REFERRAL
 • By any Member State,
• The United Nations Security Council or
• Individuals through the office of the prosecutor

The Security Council has the power to refer the situation to the Prosecutor under Article 13
(b), in case of-
• threat to the peace,
• breach of the peace or
• act of aggression.
[even if there is a referral by the SC under Article 13 (b), the Court still retains power to
determine whether the case is admissible or not. ]

Article 16 of the Statute provides

‘no investigation or prosecution may be commenced or proceeded with under this statute for
a period of twelve months after the Security Council in a resolution adopted under Chapter
VII of the charter of the UN, has requested the court to that effect; that request may be
renewed by the Council under the same conditions’.

• The provision on deferral by the SC is deemed to negatively frustrate the ICC’s

powers.
• The SC, under Article 16, may request the ICC not to investigate or proceed with
prosecution when it feels that the judicial action or threat of it might defeat council’s
efforts to maintain international peace and justice pursuant to UN charter.
• The provision only mentions deferring of investigation or prosecution on the request
by the SC.
• Article 16 further implies that the SC resolution may not only prevent (or defer) the
start of the investigation but once initiated (or started) it may also stop the
investigation or prosecution that is already going on.

• Any issues of admissibility are intrinsically linked to jurisdiction (both overlap

sometimes)
[Based on principle of complementarity]

Article 17(1) of the Rome Statute 1998 states grounds of admissibility as follows:
“...the Court shall determine that a case is inadmissible where:
a) The case is being investigated or prosecuted by a State which has jurisdiction over it,
unless the State is unwilling or unable genuinely to carry out the investigation or
prosecution;
b) The case has been investigated by a State which has jurisdiction over it and the State has
decided not to prosecute the person concerned, unless the decision resulted from the
unwillingness or inability of the State genuinely to prosecute.

• Further, Article 17 clarify that determinations of admissibility are to be made by the

court with an independent assessment as the sole arbiter when it says ‘’the court
shall determine’’ and
 • The main rule and starting place for admissibility issue is that the court must first be
convinced that it can exercise jurisdiction over the case in question as entrenched in
the statute, once it satisfy itself that it has jurisdiction over the matter, then it can
also by its own motion determine the admissibility of the case.
• Question of admissibility has to be considered both before investigation opens into a
situation by the prosecutor, before he chooses a case to prosecute and during
confirmation hearing in Pre-trial chambers the court shall consider.’’

• Where there are challenges, it has been argued that, the inadmissibility of such cases
is rebuttable and can be admissible under three conditions which are;
• ‘’the state unwillingness or unable genuinely to carry out investigation or
prosecution’’,
• “inability of the state to prosecute’’ and
• where the person has been tried but the proceedings deemed to be for the purpose
of ‘’shielding the person concern from criminal liability.’’

Furthermore, given the Prosecutor’s obligation under Art.18 to notify all States with
jurisdiction upon the commencement of an investigation, in order that they may seek a
• deferral of that investigation while they undertake national proceedings, in a
situation
• where no such request has been forthcoming, it can be submitted that such States
with jurisdiction over the case at hand have resolved to support the admissibility of
the case before the ICC complementary jurisdiction.

ARTICLE 21

The Statute, Elements of crime and its Rules of Procedure and Evidence
2. Applicable treaties and principles and rules of international law, including the established
principles of the international law of armed conflict
3. General principles of law derived by the court from national laws of legal systems of the
world including national laws of states that would normally exercise jurisdiction over the
crime, provided that those principles are not inconsistent with statute and with
international law and internationally recognized norms and standards.
4. The court may apply principles and rules of law as interpreted in previous decisions.
5. The application and interpretation of law must be consistent with internationally
recognized human rights and be without any adverse distinction found on grounds of
gender, age, race, colour, language, religion or belief, political or other opinion, national,
ethnic or social origin, wealth, birth or other status.

Article 34 of the Statute provides for the organs of the court as under-
• The Presidency (One President, Two Vice-presidents)
• An Appeals Division, a Trial Division and a Pre-Trial Division (Total 18 judges)
• The Office of the Prosecutor
• The Registry
GENERAL PRINCIPLES OF CRIMINAL LAW
• Nullum Crimen Sine Lege
• Nulla Poena Sine Lege
 • Non-retroactivity ratione personae
• Principle of Individual Criminal Responsibility
• Command Responsibility for International Crimes

WEEK 13

CLS AND TWAIL

Critical Legal Studies

International legal theory comprises a variety of theoretical and methodological approaches
used to explain and analyse the content, formation and effectiveness of public international
law and institutions and to suggest improvements. Some approaches center on the question of
compliance: why states follow international norms in the absence of a coercive power that
ensures compliance. Other approaches focus on the problem of the formation of international
rules: why states voluntarily adopt international legal norms, that limit their freedom of action,
in the absence of a world legislature. Other perspectives are policy oriented; they elaborate
theoretical frameworks and instruments to criticize the existing rules and make suggestions on
how to improve them. Some of these approaches are based on domestic legal theory, others
are interdisciplinary, while others have been developed expressly to analyse international law.

CLS: legal theories that criticize not only the legal rules or outcomes, but large structures of
conventional legal thought and practice. Within CLS:
- Feminist Legal Theory: examines the role of gender in the law
- Critical Race Theory: concerned with the role of gender in law
- Postmodernism: critique of the law influenced by developments in legal theory.

Dominant themes of CLS movement:

1. Indeterminacy: Asserts that laws do not by necessity produce specific outcomes.
2. Contradiction: rejects the idea that a legal doctrine contains a single, coherent, and
justifiable view of human relations.
3. Legitimation and false consciousness: Law serves the powerful, not in an immediate
and direct way, but through “legitimation”. False consciousness is a failure to see the
exploitative aspects of the current system.

TWAIL
Introduction

Says “the threat of recolonization is haunting the 3rd world”

International law is playing a crucial role in helping legitimize and sustain the unequal
structures and processes that manifest themselves in the growing north-south divide.

“Indeed, international law is the principle language in which domination is coming to be

expressed in the era of globalization.”—international law is even displacing national legal
systems.

“Armed with the powers of international financial and trade institutions to enforce a neo-liberal
agenda . . . Even international human rights discourse is being manipulated to further and
legitimize neo-liberal goals.”
“In brief, the economic and political independence of the 3rd world is being undermined by
policies and laws dictated by the 1st world and the international institutions it controls.”

Chimni laments that TWAIL hasn’t yet been able to effectively critique neo-liberal
international law or project an alternative vision of international law.

Chimni’s paper presents a critique of globalizing international law and proposes a set of
strategies directed towards creating a world order based on social justice; aims to “initiate a
debate rather than make a definitive statement”

The “3rd World”—still an important/useful category today?

Chimni notes that it’s often argued that the category “3rd world” is anachronistic today,
outdated; and acknowledges that the category 3rd world is made up of “a diverse set of
countries, extremely varied in their cultural heritages, with very different historical experiences
and marked differences in the patterns of their economies.”

But despite this Chimni makes case for the continuing relevance of the category “3rd world.”
Why?

Countries of Asia, Africa, and Latin America share common history of subjection to
colonialism and continuing underdevelopment and marginalization—same structures and
processes that produced colonialism have now spawned “neo-colonialism”

Continuing usefulness of category lies in pointing to certain structural constraints that the world
economy imposes on one set of countries as opposed to others.

Also, important to keep 3rd world category so that countries can better organize and offer
collective resistance to hegemonic policies.

The category “3rd world” reflects a level of unity imagined and constituted in ways which
would enable resistance to a range of practices which systematically disadvantage and
subordinate an otherwise diverse group of states.

Protect against the familiar “divide and rule” strategy employed by the West.

Misrepresenting and undermining the unity of the “other” is a crucial element in any strategy
of dominance.

Strategy seeks to prevent a global coalition of subaltern states and peoples from emerging
through positing divisions of all kinds.

Dominant states have also taken direct measures to weaken the 3rd world coalition, has
prevented an effective 3rd world coalition from emerging as a counterweight to the unity of the
1st world.

Chimni emphasizes that his understanding of the “3rd world” category is sharply distinct from
that of its ruling elite (so not ignoring class and gender divides within country)—in the era of
globalization, the ruling elite in the 3rd world is becoming an integral part of an emerging
transnational ruling elite
State and International Law in an Era of Globalization

Chimni identifies creation of a “unified global economic space” with appropriate international
law and international institutions to go along.

International law is coming to define the meaning of a “democratic state” and relocating
sovereign economic power in international institutions, greatly limiting the possibilities of 3rd
world states to pursue independent self-reliant development. These developments seek to
accommodate the interests of a transnational ruling elite which has come to have unprecedented
influence in shaping global policies and law.

This may have far reaching consequences for the peoples of the 3rd world—Chimni identifies
11 overlapping developments that are redefining and reconstituting the relationship of state and
international law/institutions, albeit with differential impact on 3rd world states and peoples:

International law now in the process of creating a defining the “democratic state”
- This has led to the internal structure of states coming under the scrutiny of international
law.
- International law norm now requires states to hold periodic elections, but international
law pays scant attention to the fact that formal democracy excludes large groups from
the decision-making process.
- The task of this “low intensity” democracy is to create the conditions in which
transnational capital can flourish—international law doesn’t take global democracy
seriously.
- In brief, international law today operates “with a set of ideas about democracy that
offers little support for efforts either to deepen democracy within states or to extend
democracy to transnational and global decision-making.”

International law now aspires to directly regulate property rights

- Internationalization of property rights—especially intellectual property rights (TRIPS);
privatization of state owned property; lifting constraints on the mobility and operation
of the transnational corporate sector—BITS concluded between industrialized and 3rd
world countries, World Bank/IMF Guidelines on Foreign Investment.
- Regarding circulation of commodities, international law defining conditions in which
exchange is to take place.
- International law lays down rules with regard to sale of goods, market access,
government procurement, subsidies, and dumping.
- Many of these rules are designed to protect the corporate actor in the 1st world from
efficient production abroad even as 3rd world markets are being pried open for its
benefit.

International law increasingly requires “deterritorialization of currencies”

- 1st world is using international financial institutions to compel 3rd world states to accept
monetary arrangements which are not necessarily in their interests.
- Internationalization of property rights has been accompanied by the internationalization
of the discourse of human rights.
- HR talk has come to have a pervasive presence in international relations and
international law.
 - Chimni says fact that omnipresence of the discourse of HR in international law has
coincided w/ increasing pressure on 3rd world states to implement neo-liberal policies
is no accident—right to private property and all that goes along with it is central to the
discourse on HR.
- Can be ground on which intrusive intervention into 3rd world sovereign spaces is
justified—says the implementation of neo-liberal policies is a significant cause of
growing internal conflicts in the 3rd world
Labor market deregulation (prescribed by international financial institutions and international
monetary law) has caused the deterioration of the living conditions of 3rd world labor
- Trying to get rid of what is seen as “excessive” government intervention in labor
markets (public sector wage and employment policies, minimum wage fixing,
employment security rules)
- Growing competition among 3rd world countries to bring in foreign investment has led
to “race to the bottom”

The concept of jurisdiction is being rendered more complex

- Civil: digital capitalism threatens to “make a hash” out of geopolitical boundaries and
reduce ability of 3rd world states to regulate transnational commerce; Powerful states
put into effect laws that have an extraterritorial effect—3rd world states have little
control over processes initiated without its consent in distant spaces.
- Also, IHRL being interpreted to delimit sovereign jurisdiction in diverse manner—e.g.
universal jurisdiction and humanitarian intervention.
- Says while these developments may have a progressive dimension they can easily be
abused to threaten 3rd world leaders and peoples unless they are willing to accept the
dictates of the 1st world

There has been a proliferation of international tribunals that subordinate the role of national
legal systems in resolving disputes.
- Range from international criminal tribunals to international commercial arbitration to
WTO Dispute Settlement System.
- Chimni says problem is that these rules/ institutions have a differential meaning for and
impact on 3rd world states and peoples.
- Neglect of the views/ legal systems of societies visited by internal conflict in setting up
ad hoc international criminal tribunals, even as US refuses to ratify ICC Rome Statute.
- WTO dispute settlement system’s rules have proven to be biased in favor of the 1st
world.

State is no longer the exclusive participant in the international legal process

- Paradigmatic case of “global law without the state” is “lex mercatoria”—the
transnational corporate actor is the principal moving force in decentralized law making.
- Lack of “public voice” in emergence of corporate law without a state.
- Corporations take advantage of their “inner legality” to avoid taxes and other liabilities.

Refusal to affirmatively differentiate between states at different stages of the development

process
- International law today evolving uniform global standards to facilitate the mobility and
operation of transnational capital.
- No longer space for recognizing the concerns of states and peoples subjected to long
colonial rule—poor and rich states are to be treated alike in the new century and the
principle of special and differential treatment is to be discarded.
 -
Relationship between the state and the UN is being reconstituted
- Corporate actor has come to play a greater role within different UN bodies.
- This “privatization” of the UN system reduces the possibility of the organization being
at the center of collective action by 3rd world countries

Ideology, Force, and International Law

Old idea that dominant social forces in society maintain their domination not through use of
force but by having their world view accepted as natural by those over whom domination is
exercised (force is only used when absolutely necessary)

Language of law has always played a significant role in legitimating dominant ideas.

International law is no exception to this rule—it legitimizes and translates a certain set of
dominant ideas into rules and thus places meaning in the service of power.

Today, these ideas include a particular understanding of the idea of “global governance” and
accompanying conceptions of state, development, and rights.

Process through which the culture of international law shaped.

3rd world students of international law tend to take their cues from books and journals published
in the North/West (“cultural imperialism”)

International institutions also play an important role—they “ideologically legitimate the norms
of the world order, co-opt the elite from peripheral countries, and absorb counter-hegemonic
ideas”

“Idea of Good Governance” & “Human Rights as Panacea”

Global governance: Globalizing international law, overlooking its history, and abandoning the
principle of differential treatment, legitimizes itself through the language of blame. The North
seeks to occupy the moral high ground through representing 3rd world peoples, in particular
African peoples, as incapable of governing themselves and thereby hoping to rehabilitate the
idea of imperialism.

The inability to govern is projected as the root cause of frequent internal conflicts and the
accompanying violation of HR necessitating humanitarian assistance and intervention by the
North.

Need to remember that colonialism was justified on the basis of humanitarian arguments (the
“civilizing mission”)—no different today.
Overlooked is the role played by international economic and political structures and institutions
in perpetuating the dependency of 3rd world states and in generating conflict within them.

HR as Panacea: Belief that HR offers a cure for nearly all ills which afflict 3rd world countries.
True that the globalization of HR does offer an important basis for advancing the cause of the
poor and marginalized in 3rd world countries.

But equally true that the focus allows the pursuit of the neo-liberal agenda by privileging
private rights over social and economic rights (e.g. Preamble to TRIPS agreement asserts that
“intellectual property rights are private rights”, but doesn’t talk of the “right to health” of
individuals or peoples—this always subject to the rights of the patent holders)

Official IHRL discourse omits any discussion of the accountability of international institutions
such as the World Bank, IMF, WTO which promote policies w/ grave implications for both the
civil and political rights as well as the social and economic rights of the poor

Story of Resistance and International Law

Central to TWAIL is a “theory of resistance”—TWAIL’s critique of the dominant ideology

has to be accompanied by a coherent theory of resistance: the critique has to be integrally linked
to the struggles of people against unjust and oppressive international laws.

Theory of resistance has to avoid the pitfalls of “liberal optimism” on one hand, and “left wing
pessimism” on the other.

Liberal optimism: This view believes that the world is progressively moving towards a just
world order. Believes that more law and institutions are steps in this direction.

Left wing pessimism: This view completely rejects this narrative of progress. Only sees the
“endlessly repeated play of dominations.” Under this view “humanity installs each of its
violence’s in a system of rules and thus proceeds from domination to domination”

Chimni says there is room for a 3rd view occupying the space between liberal optimism and
left-wing pessimism.This view doesn’t subscribe to either the rosy view that humankind is
inevitably moving toward a just world order or the idea that resistance to domination is
ultimately an empty and futile historical act.

From standpoint of TWAIL, necessary first to make the story of resistance an integral part of
the narrative of international law. Second, TWAIL needs to strike an alliance with other critics
of the neo-liberal approach to international law.

By joining together, possibility of developing coherent and comprehensive alternatives to

mainstream Northern international law scholarship

Conclusion
“International law has always served the interest of dominant social forces and states in
international relations . . . The colonial period saw the complete and open negation of the
autonomy of the colonized countries. In the era of globalization, the reality of dominance is
best conceptualized as a more stealthy, complex, and cumulative process. A growing
assemblage of international laws, institutions, and practices coalesce to erode the independence
of third world countries in favor of transnational capital and powerful States. The ruling elite
of the third world, on the other hand, has been unable and/or unwilling to devise, deploy, and
sustain effective political and legal strategies to protect the interests of third world peoples.”
“Yet we need to guard against the trap of legal nihilism through indulging in a general and
complete condemnation of contemporary international law. Certainly, only a comprehensive
and sustained critique of present-day international law can dispel the illusion that it is an
instrument for establishing a just world order. But it needs to be recognized that contemporary
international law also offers a protective shield, however fragile, to the less powerful States in
the international system . . . Second, a critique that is not followed by construction amounts to
an empty gesture. Imaginative solutions are called for in the world of international law and
institutions if the lives of the poor and marginal groups in the third world are to be improved.”

WEEK 14
FEMINISIM AND INTERNATIONAL LAW

Women’s international peace organizations supported the development of international law

and international institutions in the hope that they would provide a means to resolve
international disputes peacefully. These and other early feminist efforts bore some fruit,
notably with provision for greater protections for civilians in the context of armed conflict, the
adoption of anti-trafficking treaties, and International Labour Organization (ILO) conventions
concerned with women’s conditions of employment.

However, this engagement with international law was largely uncritical. International law was
understood as a hopeful site for feminist engagement; as providing a means for the
improvement of women’s lives as well as enabling a permanent peace.

By the mid-1980s, more critical feminist approaches were emerging as it was becoming clear
that the law was largely impervious to feminist concerns, with women’s issues marginalized
by specialist institutions and instruments, and women still being treated protectively rather than
as full rights-bearing subjects of the law.

With the emergence of feminist structural and postcolonial critiques of international law, which
examined its normative and institutional structures, finding them deeply committed to
masculinist and imperial power and therefore in need of significant reconstruction.

Feminist approaches to international law have always fallen under a very broad umbrella,
resulting in dynamic engagements with the law and its fraternity, as well as passionate internal
critique and self-reflection.

Feminism’s basic commitment can be described as the struggle to realize women’s equality,
but the reality is that multiple strands of feminism have been used to inform international legal
theories and practices, and women’s “equality” is considered by some to be an inadequate
aspiration.

Postcolonial and critical race feminisms have a particularly significant role to play in a field of
law that grew from European as well as patriarchal origins. And more recently, the challenge
to fully denaturalize “gender” and treat it as an entirely social category has highlighted the
importance of questioning the received male/female duality and examining the new
possibilities that more fluid conceptions of gender and sexuality open for analysing the law’s
enduring exclusionary effects.
Feminist engagements with international law have fostered a vast and diverse literature—
marked by both hopefulness and despair, by creative advocacy as well as deepening critique—
which touches on every branch or sub discipline of international law.

___________________________________________________________________________

Women participate in international law in ways that reflect their identity as part of an ethnic,
linguistic, or religious group, rather than the united front of gender.

Women's voices should be equally represented because all voices should be represented and
women are half of humankind.

Women's experience is ethically superior and can therefore provide a standard for judging the
world.

Critical Legal Studies

International legal theory comprises a variety of theoretical and methodological approaches
used to explain and analyse the content, formation and effectiveness of public international
law and institutions and to suggest improvements. Some approaches center on the question of
compliance: why states follow international norms in the absence of a coercive power that
ensures compliance. Other approaches focus on the problem of the formation of international
rules: why states voluntarily adopt international legal norms, that limit their freedom of action,
in the absence of a world legislature. Other perspectives are policy oriented; they elaborate
theoretical frameworks and instruments to criticize the existing rules and make suggestions on
how to improve them. Some of these approaches are based on domestic legal theory, others
are interdisciplinary, while others have been developed expressly to analyse international law.

Critique

What are the main tenets of the feminist critique of international law? Outline some of the
various feminist critiques presented by Chinkin and Charlesworth. Do you think Public
International Law ignores the views of women?

The feminist critique of international law is built on two main notions, the innate ignorance of
women during the law-making process in the international legal system and on the inherent
tendency of the law to incline towards the male gender.

Chinkin and Charlesworth believe that this has thus resulted in "a narrow and inadequate
jurisprudence". They emphasized on four critiques of international law, which is leading to
“male dominance of women”. Firstly, they pointed the “absence of women in international
legal institutions”. The lack of representation of women as head of States or in international
institutions like the UN clearly emphasizes this notion. Secondly, they emphasized on how
“women were excluded by the international documents” by the continued usage of the generic
male pronoun. Liberal feminists are against this typed of sexed laws. They assert equality
between men and women. They believe that only bad law is the problem, not the law as a
whole. They believe that there is an inherent flaw of bias in the methodology, when men
produce it by observing other men. Men wrote most the international literature. Thirdly, they
highlight how “certain ‘neutral’ principles and rules of International law are seen to operate
differently with respect to women and men.” In the 21st century, inhuman crimes such as
slavery, racial discrimination etc. are considered as jus cogens, however, the international law
does not consider trafficking women, prostitution etc. as a peremptory norm. Fourthly, they
reveal how certain “basic concepts of international law reveals a sexed and gendered
nature”. When the law talks about the State protecting the people, the State over here would
be referring to men protecting the weaker people i.e. the women. The Cultural Feminists
(another school of feminism) describes this voice as the “different voice”. This school of
feminism stresses, on how this “different voice” is not equally respected and valued if it is
considered a woman’s voice. The authors also comment on the concept of essentialism. They
believe that this would pose as a liability for restructuring political and social life as it
stereotypes the characteristics or the “essence” of women.

Yes, I believe that public international law ignores the views of women. It is clearly seen from
the above discussion of the feminist critique that the international law ignores women in the
process of law making and is inherently biased towards men. Though International law
essentially deals with the various States, these laws are framed by the subjects, to govern the
various aspects relating to the States, which they are part of. Therefore, the individuals of the
states are the indirect parties of international laws. Thus, it requires the adequate representation
of everyone’s interest, which even includes the ignored women.
(these notes are a compilation of Jasmeet Gulati’s 2018 slides that I printed for my open-book final)

INTRODUCING INTERNATIONAL LAW

Defining PIL

As a Law of Nations:
Oppenheim “International Law is the name for the body of customary and conventional rules which are
considered legally binding by civilized states in their intercourse with each other.”
Hall ‘International Law consists of certain rules of conduct which modern civilized states regard as
binding on them in their relations with one another’.
Brierly ‘Law of Nations may be defined as body of rules & principles of action which are binding upon
civilized states in their relations with one another
Revised definition by Oppenheim, International law is the body of rules which are legally binding on
states in their intercourse with each other. The rules are primarily those which govern the relations of
states; but states are not the only subject of international law. International Organizations and to some
extent, also individuals may be subjects of rights conferred and duties imposed by international law.
Starke’s definition, International Law is that body of law which is composed for its greater part of the
principles and rules of conduct which states feel themselves bound to observe and therefore do
commonly observe in their relations with each other and which includes also-
(a) rules of law relating to the functioning of international institutions or organizations, their
relations with each other and their relations with states and individuals, and
(b) certain rules of law relating to individuals and non-state entities so far as the rights and duties
of such individuals or non-state entities are the concern of international community.
Fenwick ‘International law may be defined in broad terms as body of general principles and specific
rules which are binding upon the members of the international community in their mutual relations’.
Whiteman ‘International law is the standard of conduct, at a given time, for states and other entities,
subject thereto’.

Nature of International Law

 Differentiating International Law with Municipal Law

- Subjects of International Law and Municipal Law
 Can states be the subjects of legal obligation?
 Obligation and Sovereignty of states
o Whenever the word 'sovereign' appears in jurisprudence, there is a tendency to associate with
it the idea of a person above the law whose word is law for his inferiors or subjects.
o A sovereign state is one not subject to certain types of control, and its sovereignty is that area
of conduct in which it is autonomous.
 Is International Law binding?
 Is International Law merely a morality
o A rule may exist because it is convenient or necessary to have some clear fixed rule about
the subjects with which it is concerned, but not because any moral importance is attached
to the particular rule.

Defining Law

Analytical School: Austin ‘Law is the command of the sovereign’.

o Law is the command enacted by sovereign legislative authority
o Command must be enforced by sovereign authority (command theory)

1
Historical School: Henry Maine Law existed even in the primitive society. There was no sovereign then.

Holland ‘International law is the vanishing point of jurisprudence’.

For Treaty Law: Principle of Pact Sunt Servanda

For customary law: 'States should behave as they customarily behave'.
Whether merely a positive morality:
o Rule of morality if by common consent of community it applies to conscience and to conscience
only
o Rule of law wherein by common consent of community it is eventually enforced by external
power.

Critical Analysis

By Historical School: Definition by Austin does not consider custom

o Laws not only observed by sanction – by habit of mind; practice of community
o Law is by the common consent of community
o Fails to account for customary rules of international law and common law of England
True law:
o Treaty law is enacted law
o International community exists
o May be breached- even laws of warfare are observed
o International Law part of law of land (E.g, US)
o UN charter based on true legality of International Law
o International legislations in the form of treaties
o Sanctions can be applied under UN charter
Security Council can take measures to enforce decisions of ICJ

Sanctions

CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND
ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or
act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.
Article 40
In order to prevent an aggravation of the situation, the Security Council may, before making the
recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or position of the parties
concerned. The Security Council shall duly take account of failure to comply with such provisional
measures.
Article 41
The Security Council may decide what measures not involving the use of armed force are to be
employed to give effect to its decisions, and it may call upon the Members of the United Nations to
apply such measures. These may include complete or partial interruption of economic relations and
of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance
of diplomatic relations.
Article 42

2
 Should the Security Council consider that measures provided for in Article 41 would be inadequate or
have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary
to maintain or restore international peace and security. Such action may include demonstrations,
blockade, and other operations by air, sea, or land forces of Members of the United Nations.

1. Sanctions by States: Individually; by use of force in Self-defense (but proportionate force to be

used)
2. Collective Sanctions: UN charter Chapter-VII- economic and military
o Economic: South Rhodesia in 1966; South Africa in 1977; Iraq in 1990; Libya in 1992;
Yugoslavia in 1992; Rwanda in 1994; Sierra Leone in 1997
o Military: Korean crisis in 1950; Gulf crisis in 1990-91; Somalia in 1992; Rwanda in 1994

SOURCES OF INTERNATIONAL LAW

 Sources means ‘Origin’- they are the procedure or method by which it is created
 Sources of international law are those processes and instruments out of which the rules and
principles of international law are developed
 The internationally accepted classification of sources of international law is formulated in Article
38 of the Statute of the International Court of Justice.
 Article 38(1) of the statute of ICJ provides a reflection of the sources of international law
 Article 38 did not expressly mention ‘sources' but it is usually invoked as sources of international
law.
 Sources of international law can be characterized as ‘formal' and ‘material' sources, though the
characterisation is not by hierarchy but for clarification, therefore, Article 38(1)(a-c),that is,
conventions or treaties ,custom and general principles are formal sources whereas Article
38(1)(d) that is, judicial decisions and juristic teachings are ‘material sources'.
 Formal sources confer upon rules an ‘obligatory character', while material sources comprise the
‘actual content of the rules‘
 Article 38(1) of the Statute of the International Court of Justice is widely recognised as the most
authoritative and complete statement as to the sources of international law.
 It provides that:
 The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a) international conventions, whether general or particular, establishing rules expressly
recognized by the contesting states;
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations;
d) subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.

International Conventions

 Article 38 (1) (a) international conventions, whether general or particular, establishing

rules expressly recognized by the contesting states;
 Conventions- two kinds: General or Particular
 Treaties defined in Article 2 of the VCLT 1969;
‘A treaty is an agreement whereby two or more states, establish or seek to establish
relationship between them governed by international law’.
 Two kinds of Treaties: Law making Treaties & Treaty Contracts

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  Sources are with reference to Law Making Treaties; which are general or particular in nature
 Treaties are modern, deliberate, express agreements and in some ways superior to customs
 In North Sea Continental Shelf Cases, 1969 between Holland and Denmark; held that since West
Germany not a signatory; therefore it is not bound by the provisions.

International Custom

 Article 38 (1)(b): International custom, as evidence of a general practice accepted as law;

Custom defined as:
o General Practice (State Practice): Antiquity/ long duration. Universality, Generality of Practice
o Accepted as Law: Opinio Juris
 State Practice:
o Long Duration: Repetition, from ancient times, time immemorial; but Bin Cheng that repetition
not necessary (like sovereignty over air space and continental shelf)
o Uniformity and Consistency of Practice (Lotus case 1927- must be uniformly followed; Asylum
case 1950- Diplomatic Asylum not custom)
o Generality of Practice
 Opinio Juris et necessitates- by French jurist Francois Geny; meaning legal obligation to act that
way

General Principles of Law

 Article 38 (1) (c) the general principles of law recognized by civilized nations
 Solves problem of non-liquet
 G.P of law are relied for settlement of disputes mostly in relation to the procedures and evidences
 Situations appearing in municipal systems; these are those rules which are repeated in states in
that kind of situation
 Reparations to be made for unlawful act, Res Judicata, Estoppel, lifting of corporate veil
 In Chorzow Factory Indemnity case 1928; reparations to be made; one who violates rules is liable
to pay reparation; in this case there was seizure of nitrate factory by Poland in Upper Silesia.
Permanent Court of International Justice declared that ‘it is a general conception of law that every
violation of an engagement involves an obligation to make reparation’.
The Court also regarded it as: a principle of international law that the reparation of a wrong may
consist in an indemnity corresponding to the damage which the nationals of the injured state have
suffered as a result of the act which is contrary to international law.
 In Corfu Channel case 1949, circumstantial evidence to be taken into consideration
 The question of res judicata was discussed in some detail in the Genocide Convention (Bosnia
and Herzegovina v. Serbia and Montenegro) case, where the issue focused on the meaning of
the 1996 decision of the Court rejecting preliminary objections to jurisdiction. The Court
emphasized that the principle ‘signifies that the decisions of the Court are not only binding on the
parties, but are final, in the sense that they cannot be reopened by the parties as regards the issues
that have been determined, save by procedures, of an exceptional nature, specially laid down for
that purpose.
 Principle of estoppel applied in Land, Island and Maritime Frontier Dispute and also in El
Salvador/ Honduras case (Application by Nicaragua for permission to intervene)
 In Barcelona Traction case, lifting of corporate veil was applied from domestic law to
international law. The company was registered under the Canadian law in Spain, but 88%
shareholders were Belgians, when the company was declared bankrupt by a Spanish court. The
claim was brought by Belgium to protect the interests of its nationals who were shareholders in

4
 the company. The principle of lifting of corporate veil from domestic law was applied under
international law.

Judicial Decisions and Juristic Works

 Article 38 (1) (d): Subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various nations, as subsidiary means
for the determination of rules of law.
 Subsidiary means for determinations, secondary sources
 Article 59: Decisions are binding between parties only; therefore no precedents.

Other Works

 Resolutions of International Organizations:

o In Nicaragua case, the court placed great reliance on UN Resolution 2625 (XXV), the
Declaration on Principles of International Law concerning Friendly Relations and Cooperation
among States
o In Nuclear Weapons Advisory Opinion, Court accepted Principle 21 of the Stockholm
Declaration 1972 and Principle 2 of the Rio Declaration 1992 have entered the corpus of
international law relating to the environment.
o In Gabcikovo-Nagymaros case, court accepted the principle of sustainable development
 International Comity/ State Papers
 Equity and Justice
o In Diversion of Water from the Meuse (1937), court decided on equitable use of international
rivers.
o Equity also applied in North Sea Continental Shelf cases

Hierarchy of Sources

 Jurists- Pellet, however, notes that while there is no formal hierarchy as between conventions,
custom and general principles, the International Court uses them in successive order and ‘has
organized a kind of complementarity between them’. Dupuy, in his book argues that there is no
hierarchy of sources. The ILC Study on Fragmentation, however, agrees with writers proclaiming
that ‘treaties generally enjoy priority over custom and particular treaties over general treaties’,
 As a general rule, that which is later in time will have priority. Treaties are usually formulated to
replace or codify existing custom, while treaties in turn may themselves fall out of use and be
replaced by new customary rules.
 There is in addition a principle to the effect that a special rule prevails over a general rule (lex
specialis derogat legi generali), so that, for example, treaty rules between states as lex specialis
would have priority as against general rules of treaty or customary law between the same states,
although not if the general rule in question was one of jus cogens.

Importance of Customs:
 Customs are dynamic process of law creation and important than treaties because of their
universal application
 Customs are of value since they are activated by spontaneous behavior and mirrors contemporary
concerns of life.
 Participation of all states encourages compliance

Customs diminishing:

5
  International Law has to contest with massive increase in pace and variety of state activities and
come to terms with many different cultural and political traditions

TREATIES

■ Treaties are known by a variety of differing names- Conventions, International Agreements, Pacts,
General Acts, Charters, Statutes, Declarations and Covenants
■ The term refers to the creation of written agreements whereby the states participating bind
themselves legally to act in a particular way or to set up particular relations between themselves.
■ Treaties are express agreements and are a form of substitute legislation undertaken by states.
■ Treaties may be concluded, or made, between states and international organisations, they are
primarily concerned with relations between states.
■ An International Convention on the Law of Treaties was signed in 1969 and came into force in
1980
■ Convention on Treaties between States and International Organisations was signed in 1986.
■ The 1969 Vienna Convention on the Law of Treaties partly reflects customary law and constitutes
the basic framework for any discussion of the nature and characteristics of treaties.
■ Certain provisions of the Convention may be regarded as reflective of customary international law,
such as the rules on interpretation, material breach and fundamental change of
circumstances.
■ The fundamental principle of treaty law is undoubtedly the proposition that treaties are binding
upon the parties and must be performed in good faith: called the Principle of Pacta Sunt
Servanda
■ An Italian jurist Anzilotti, observed that the binding force of international treaty is on account of
the fundamental principle known as Pact Sunt Servanda. According to this principle, States are
bound to fulfil in good faith the obligations assumed by them under treaties.
■ The principle of Pacta Sunt Servanda was reaffirmed in Article 26 of the 1969 Convention, and
underlies every international agreement for, in the absence of a certain minimum belief that states
will perform their treaty obligations in good faith, there is no reason for countries to enter into
such obligations with each other.
■ A treaty is defined, for the purposes of the Convention, in Article 2 of the VCLT 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’.
■ The same definition is given (substituting states and international organisations for states alone)
in the 1986 Convention on Treaties between States and International Organisations.
■ There are no specific requirements of form in international law for the existence of a treaty
although it is essential that the parties intend to create legal relations as between themselves by
means of their agreement.
■ In the Fisheries Jurisdiction case (1973), the ICJ made its observations regarding validity of
treaties concluded under coercion. The opinion of the court is hereby summarized:
1. Under the principles of contemporary international law, which found their expression in the
charter of the UN and the VCLT, a treaty concluded under the threat or use of force is void.
2. The allegation that a given treaty is concluded under coercion is an accusation of a very serious
nature, and it cannot be based on the grounds of a vague general charge, unfortified by
evidence in its support.
3. By reason of the seriousness of this accusation, the question whether a given treaty is vitiated
by coercion should be decided by an international body, preferably, the ICJ.

Formation of Treaties

6
1. Authorizing Persons on behalf of Contracting Parties: Such persons must produce what is
termed ‘full powers’ according to Article 7 of the Convention, before being accepted as capable of
representing their countries. ‘Full powers’ refers to documents certifying status from the
competent authorities of the state in question.
2. Negotiation and Adoption: The text of the agreement drawn up by the negotiators of the parties
has to be adopted and Article 9 provides that adoption in international conferences takes place by
the vote of two-thirds of the states present and voting, unless by the same majority it is decided
to apply a different rule. This procedure follows basically the practices recognised in the United
Nations General Assembly and carried out in the majority of contemporary conferences. An
increasing number of conventions are now adopted and opened for signature by means of UN
General Assembly resolutions, such as the 1966 International Covenants on Human Rights and the
1984 Convention against Torture, using normal Assembly voting procedures.
o The consent of the states parties to the treaty in question is a vital factor, since states may
be bound only by their consent. Treaties are in this sense contracts between states and if
they do not receive the consent of the various states, their provisions will not be binding
upon them. There are, however, a number of ways in which a state may express its consent
to an International agreement. It may be signaled, according to Article 11, by signature,
exchange of instruments constituting a treaty, ratification, acceptance, approval or
accession.
3. Signatures: A state may regard itself as having given its consent to the text of the treaty by
signature in defined circumstances noted by Article 12, that is, where the treaty provides that
signature shall have that effect, or where it is otherwise established that the negotiating states
were agreed that signature should have that effect.
o Although consent by ratification is probably the most popular of the methods adopted
in practice, consent by signature does retain some significance, especially in light of the fact
that to insist upon ratification in each case before a treaty becomes binding is likely to
burden the administrative machinery of government and result in long delays.
o Accordingly, provision is made for consent to be expressed by signature. This would be
appropriate for the more routine and less politicized treaties.
o In multilateral conventions, a special closing session will be held at which authorized
representatives will sign the treaty. However, where the convention is subject to
acceptance, approval or ratification, signature will in principle be a formality and will
mean no more than that state representatives have agreed upon an acceptable text, which
will be forwarded to their particular governments for the necessary decision as to
acceptance or rejection. However, signature also means that in cases pending ratification,
acceptance or approval, a state must refrain from acts which would defeat the object and
purpose of the treaty until such time as its intentions with regard to the treaty have been
made clear.
4. Ratification: The device of ratification by the competent authorities of the state is historically well
established and was originally devised to ensure that the representative did not exceed his
powers or instructions with regard to the making of a particular agreement.
o Article 14 of the 1969 Vienna Convention notes that ratification will express a state’s
consent to be bound by a treaty where the treaty so provides; it is otherwise established
that the negotiating states were agreed that ratification should be required; the
representative of the state has signed the treaty subject to ratification or the intention of
the state to sign the treaty.
5. Accession or Adhesion: Those states who have not signed the treaty may accept it later on. This
is called accession. A treaty becomes a law only after it has been ratified by the prescribed number

7
 of state parties. Even after the prescribed number of state parties have signed, the other states
may also accept or adhere it- called adhesion.
6. Entry into Force: depends upon the provision of the treaty; some enter into force immediately
after signature, some needs ratification by prescribed number of states. VCLT 1969 itself came
into effect thirty days after the deposit of the thirty-fifth ratification and the Rome Statute for the
International Criminal Court required sixty ratifications
o A fundamental principle of international law, i.e. ‘pacta terties nec nocent nec prosunt’
means that only parties to a treaty are bound by that treaty.
7. Registration and Publication: Article 102 of the UN charter provides that the registration and
publication of every international treaty entered into by the members is essential. It is specifically
mentioned that if the treaty is not registered it cannot be invoked before any organ of the UN. The
object of this provision is to prevent the secret agreements between states.
8. Application and Enforcement: After a treaty is ratified, published and registered, it is applied
and enforced.

Reservation to a Treaty

■ A reservation is defined in Article 2 of the Convention 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’.
■ Article 2(1)d of the Vienna Convention on the Law of Treaties between States and International
Organisations, 1986 provides that a reservation means: ‘a unilateral statement, however phrased
or named, made by a state or by an international organisation when signing, ratifying, formally
confirming, 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 or to
that organization.
■ Where a state is satisfied with most of the terms of a treaty, but is unhappy about particular
provisions, it may, in certain circumstances, wish to refuse to accept or be bound by such
provisions, while consenting to the rest of the agreement. By the device of excluding certain
provisions, states may agree to be bound by a treaty which otherwise they might reject entirely.
■ The capacity of a state to make reservations to an international treaty illustrates the principle of
sovereignty of states, whereby a state may refuse its consent to particular provisions so that they
do not become binding upon it.
■ The effect of a reservation is simply to exclude the treaty provision to which the reservation has
been made from the terms of the treaty in force between the parties.
■ The general rule that became established was that reservations could only be made with the
consent of all the other states involved in the process.
■ This restrictive approach to reservations was not accepted by the International Court of Justice in
the Reservations to the Genocide Convention case (1951). This was an advisory opinion by the
Court, requested by the General Assembly after some states had made reservations to the 1948
Genocide Convention, which contained no clause permitting such reservations, and a number of
objections were made.
The Court held that: ‘a state which has made and maintained a reservation which has been
objected to by one or more parties to the Convention but not by others, can be regarded as being a
party to the Convention if the reservation is compatible with the object and purpose of the
Convention’.
■ By Article 19 of VCLT, reservations may be made when signing, ratifying, accepting, approving or
acceding to a treaty, but they cannot be made where the reservation is prohibited by the
treaty, or where the treaty provides that only specified reservations may be made and these do

8
 not include the reservation in question, or where the reservation is not compatible with the object
and purpose of the treaty.

Contents of a Treaty

■ Preamble
■ Introduction
■ Content
– Definition
– General Provisions
– Rules
– Authority (Optional)
– Technical Assistance (Optional)
■ Settlement of Disputes
■ Monitoring
■ Enforcement
■ Review
■ Obligations and Enforcement
■ Final Provisions
– Signature
– Ratification
– Accession
– Entry into Force
– Reservation
– Denunciation
– Amendment
– Depositary

Termination of Treaties

■ Extinction of either party to bilateral treaty

■ Outbreak of War (only peace treaties)
■ Material breach of bilateral treaty
■ Impossibility of Performance
■ Rebus sic stantibus (when the fundamental circumstance under which treaty was entered into
changed)
■ Expiration of Fixed Term
■ Denunciation
■ Jus Cogens (Emergence of new peremptory norm)
■ Examples: Qatar v. Bahrain 1994 & 2001; Advisory Opinion on Reservation to Genocide
Convention 1951

Consequences of Incompatible Reservations

■ Article 19(c) of the VCLT provides that a state may not formulate a reservation which is
incompatible with the object and purpose of the treaty. This provision reflects the view taken by
the International Court of Justice in the Reservations to the Convention on the Prevention and
Punishment of the Crime of Genocide.

9
 ■ Article 20(4) of the VCLT provides that, where a state makes a reservation to a treaty, any other
contracting state may object to that reservation and specify that the treaty will not enter into force
between the objecting and reserving states
■ Three Doctrines have been developed to deal with incompatible reservations:
1. Surgical Doctrine
2. Backlash Doctrine
3. Severability Doctrine
■ The ‘surgical’ doctrine, involves acceptance of the state’s ratification except for in relation to those
parts of the treaty to which the reservation objects;
■ The ‘backlash’ doctrine, involves total rejection of the state’s ratification; and
■ The ‘severability’ doctrine, which involves acceptance of the state’s ratification, excluding
(severing) the incompatible reservation. It is argued here that, in many cases, taking a severability
approach would strengthen the modern international human rights regime, protecting both its
universality and integrity. (Reservations will not be considered in this case)

Grounds of Invalidity of Treaty

■ Internal Law challenges competence to conclude treaty

■ Restriction on Authority to express consent of State
■ Error
■ Fraud
■ Corruption of Representative of State
■ Coercion of Representative of State
■ Coercion of State by threat or use of force
■ Treaties conflicting with peremptory norm of general international law (jus cogens)

CUSTOMARY INTERNATIONAL LAW

Custom

• Certain rules of behaviour that emerge and prescribe what is permitted and what is not. Such
rules develop subconsciously within the group and are maintained by the members of the group
by social pressures.
• They are not written or codified, and survive ultimately because of what can be called an aura of
historical legitimacy.
• It is regarded as an authentic expression of the needs and values of the community at any given
time.
• Custom within contemporary legal systems, is cumbersome and unimportant and often of only
nostalgic value.
• In international law, it is a dynamic source of law in the light of the nature of the international
system and its lack of centralised government organs.
• The existence of customary rules can be deduced from the practice and behaviour of states.
• Has two essentials: State practice & Opinio Juris

State Practise

• The actual practice engaged in by states constitutes the first essential.

• There are a number of points to be considered concerning the nature of a particular practice by
states, including its duration, consistency, repetition and generality

10
 – 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.
– Consistency & Repetition: The basic rule as regards continuity and repetition was laid down
in the Asylum case decided by the International Court of Justice (ICJ) in 1950. The Court
declared that a customary rule must be ‘in accordance with a constant and uniform usage
practised by the States in question’.
• Asylum Case:
– The case concerned Haya de la Torre, a Peruvian, who was sought by his government after
an unsuccessful revolt. He was granted asylum by Colombia in its embassy in Lima, but
Peru refused to issue a safe conduct to permit Torre to leave the country. Colombia brought
the matter before the International Court of Justice and requested a decision recognizing
that it (Colombia) was competent to define Torre’s offence, as to whether it was criminal as
Peru maintained, or political, in which case asylum and a safe conduct could be allowed.
– The Court, in characterising the nature of a customary rule, held that it had to constitute
the expression of a right appertaining to one state (Colombia) and a duty incumbent upon
another (Peru). However, the Court felt that in the Asylum litigation, state practices had
been so uncertain and contradictory as not to amount to a ‘constant and uniform
usage’ regarding the unilateral qualification of the offence in question.
• Anglo-Norwegian Fisheries Case:
– The ICJ emphasised its view that some degree of uniformity amongst state practices was
essential before a custom could come into existence. The United Kingdom, in its arguments
against the Norwegian method of measuring the breadth of the territorial sea, referred to
an alleged rule of custom whereby a straight line may be drawn across bays of less than ten
miles from one projection to the other, which could then be regarded as the baseline for the
measurement of the territorial sea. The Court dismissed this by pointing out that the actual
practice of states did not justify the creation of any such custom. In other words, there had
been insufficient uniformity of behavior.
• Nicaragua v. US:
– 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. The Court continued: In order to deduce the existence of customary rules,
the Court deems it sufficient that the conduct of states should, in general, be consistent
with such rules, and that instances of state conduct inconsistent with a given rule should
generally have been treated as breaches of that rule, not as indications of the recognition of
a new rule.
• Lotus Case:
– In the particular circumstances of the Lotus case the Permanent Court of International
Justice, laid down a high standard by declaring that abstention could only give rise to the
recognition of a custom if it was based on a conscious duty to abstain. In other words,
states had actually to be aware that they were not acting a particular way because they
were under a definite obligation not to act that way.
• It is how states behave in practice that forms the basis of customary law, but evidence of what a
state does can be obtained from numerous sources. Obvious examples include administrative acts,
legislation, decisions of courts and activities on the international stage, for example treaty-making,
etc.
• The obvious way to find out how countries are behaving is to read the newspapers, consult
historical records, listen to what governmental authorities are saying and peruse the many official
publications. There are also memoirs of various past leaders, official manuals on legal questions,

11
 diplomatic interchanges and the opinions of national legal advisors. All these methods are
valuable in seeking to determine actual state practice
• ‘State practice covers any act or statements by a state from which views about customary law may
be inferred.

Opinio Juris

• This is the psychological factor, the belief by a state that behaved in a certain way that it was
under a legal obligation to act that way. It is known in legal terminology as opinio juris sive
necessitatis and was first formulated by the French writer Franc¸ois G´eny.
• It differentiates legal custom from social usage
• The opinio juris, or belief that a 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.
• States will behave a certain way because they are convinced it is binding upon them to do so.
• This approach was maintained by the Court in the Nicaragua case and express reference was
made to the North Sea Continental Shelf cases. The Court noted that: for a new customary rule to
be formed, not only must the acts concerned amount to a settled practice, but they must be
accompanied by the opinion juris sive necessitatis. Either the States taking such action or other
States in a position to react to it, must have behaved so that their conduct is evidence of a belief
that this practice is rendered obligatory by the existence of a rule of law requiring it. The need for
such a belief, i.e. the existence of a subjective element, is implicit in the very notion of the opinio
juris sive necessitatis.
• The issue connected with the opinio juris is regarding emergence of new customary law- that if it
calls for behaviour in accordance with law, how can new customary rules be created since that
obviously requires action different from or contrary to what until then is regarded as law?
• Thus, one has to treat the matter in terms of a process whereby states behave in a certain way in
the belief that such behaviour is law or is becoming law. It will then depend upon how other states
react as to whether this process of legislation is accepted or rejected.
• Judge Tanaka, in his Dissenting Opinion in the North Sea Continental Shelf cases, remarked that
there was no other way than to ascertain the existence of opinio juris from the fact of the external
existence of a certain custom and its necessity felt in the international community.
• There has to be an aspect of legality about the behaviour and the acting state will have to confirm
that this is so, so that the international community can easily distinguish legal from non-legal
practices.
• The decision in the Anglo-Norwegian Fisheries case may appear to suggest that where a state
acts contrary to an established customary rule and other states accepts this, then that state is to be
treated as not bound by the original rule.
• Behaviour contrary to a custom contains within itself the seeds of a new rule and if it is endorsed
by other nations, the previous law will disappear and be replaced, or alternatively there could be a
period of time during which the two customs co-exist until one of them is generally accepted, as
was the position for many years with regard to the limits of the territorial sea

Regional or Local Custom

• Rules that have developed to bind only a set group of states, such as those in Latin America, or
indeed just two states.
• In the Asylum case, the International Court of Justice discussed the Colombian claim of a
regional or local custom peculiar to the Latin American states, which would validate its
position over the granting of asylum. The Court declared that the ‘party which relies on a custom
of this kind must prove that this custom is established in such a manner that it has become binding

12
 on the other party’. It found that such a custom could not be proved because of uncertain and
contradictory evidence.
• In such cases, the standard of proof required, especially as regards the obligation accepted by the
party against whom the local custom is maintained, is higher than in cases where an ordinary or
general custom is alleged.
• Such local customs therefore depend upon a particular activity by one state being accepted by
the other state (or states) as an expression of a legal obligation or right.
• In the Right of Passage over Indian Territory case, Portugal claimed that there existed a right of
passage over Indian territory as between the Portuguese enclaves, and this was upheld by the
International Court of Justice over India’s objections that no local custom could be established
between only two states. The Court declared that it was satisfied that there had in the past existed
a constant and uniform practice allowing free passage and that the ‘practice was accepted as law
by the parties and has given rise to a right and a correlative obligation.

Jus Cogens

• Rules of jus cogens are substantive rules recognised to be of a higher status.

• Article 53 of the Vienna Convention on the Law of Treaties, 1969, provides that a treaty will be
void ‘if, at the time of its conclusion, it conflicts with a peremptory norm of general international
law’.
• Further, by article 64, if a new peremptory norm of general international law emerges, any
existing treaty which is in conflict with that norm becomes void and terminates.
• This rule (jus cogens) will also apply in the context of customary rules so that no derogation would
be permitted to such norms by way of local or special custom.
• Such a peremptory norm is defined by the Convention as one ‘accepted and recognised 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’.
• The concept of jus cogens is based upon an acceptance of fundamental and superior values within
the system and in some respects is akin to the notion of public order or public policy in domestic
legal orders.

Erga Omnes

• An erga omnes obligation is an obligation that every state has toward the entire international
community as a whole. The nature of the rules creating erga omnes rules is such that any state has
the right to complain of a breach by another state of said rule, because every state has an interest
in the protection of the rules that generate erga omnes obligations. For example, a state does not
need to be directly or indirectly involved in a case of genocide in order to be able to complain
about it.
• The concept has primarily a procedural focus.
• ‘All states can be held to have a legal interest in their protection; they are obligations erga omnes’.
Examples of such obligations included the outlawing of aggression and of genocide and the
protection from slavery and racial discrimination
• The International Court in the East Timor case stressed that the right of peoples to self-
determination ‘has an erga omnes character’, while reiterating in the Genocide Convention (Bosnia
v. Serbia) case that ‘the rights and obligations enshrined in the Convention are rights and
obligations erga omnes’

JC + EO

13
 • A Jus Cogens rule is described in the Vienna Convention on the law of Treaties as “…a norm
accepted and 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.”
• A jus cogens rule creates an erga omnes obligation for states to comply with a rule. An erga
omnes obligation is therefore the consequence of a rule being characterized as jus cogens.

ADVISORY OPINION OF THE ICJ ON THE LEGALITY OF NUCLEAR WEAPONS

Background

 The General Assembly of the United Nations asked the Court to provide its advisory opinion on the
following question
 “Is the threat or use of nuclear weapons in any circumstances permitted under
international law?”
 In 1993, two years previously, the World Health Organization had asked the Court a similar
question on the legality of the use nuclear weapons under international law. The Court
declined to answer because the Court held that the World Health Organization did not
have the competence to ask the Court that particular question.

Questions before the Court

The Court discussed two procedural questions:

(1) Did the Court have the competence to give an advisory opinion based on a request of the General
Assembly? In other words, did the General Assembly have the competence to ask the Court for an
advisory opinion on the above question?
(2) If yes, were there any reasons that would compel the Court to decline to exercise it’s jurisdiction?

The Court also discussed four substantive questions:

(1) Did treaty or customary law authorize the use of nuclear weapons?
(2) Did treaty or customary law contain a “comprehensive and universal” prohibition on the threat
and use of nuclear weapons?
(3) Should the threat or use of nuclear weapons be compatible with international humanitarian law
and other undertakings of the law?
(4) Will the threat or use of nuclear weapons be lawful in self defense in situations where the very
survival of the State is at stake?

Court’s Decision

o Did the Court have the jurisdiction to give a reply to the request of the General Assembly?
The Court concludes that it had the jurisdiction to respond to the question for the following reasons:
 Firstly, the Court says that it has the competence under Article 65 (1) of the Statute of the ICJ to
provide an advisory opinion, when it is requested by a “competent organ of the United Nations”.
 Secondly, the General Assembly is a “competent organ” because it is authorized by Article 96 (1)
of the United Nations Charter to request an advisory opinion from the Court.
 Thirdly, together with Articles 10, 11, and 13, Article 96(1) of the UN Charter gives the General
Assembly the competence to request an advisory opinion on “any legal question”.
The Court concludes that there are no “compelling reasons” to refuse to provide a response to the
advisory opinion.

14
  The Court agrees that even if it has the competence to give an opinion, it can still refuse to respond
to an advisory opinion based on the discretion it has under Article 65 (1) of the Statute.
 Some States argued that Court should use its discretion to refuse to give an opinion. This is
because, they argued, for example, that the question posed by the General Assembly was abstract,
any response would undermine progress already made in disarmament, and that in answering the
question posed the Court would be taking upon itself a law-making capacity.
 The Court confirms that it had previously never exercised its discretion under Article 65 (1) to
refuse to answer a question. The Court says that only “compelling reasons” could lead to such a
refusal and in this situation, there are no “compelling reasons” which would lead Court to refuse.

o Did customary or treaty law authorize the use of nuclear weapons?

o The Court concludes that neither customary law, nor treaty law, explicitly authorizes the use of
nuclear weapons .
o Yet, it highlights that explicit authorization is not required because the illegality on the threat or
use of nuclear weapons does not stem from the lack of specific authorization, but on a specifically
formulated prohibition

o Did treaty or customary law prohibit the threat and use of nuclear weapons?
o Court concludes that there is no comprehensive and universal prohibition on the threat or use of
nuclear weapons either in treat or customary law.
o In terms of treaty law, some States argued that the use of nuclear weapons would violate the right
to life and other treaty-based human rights, prohibition on genocide, and rules relating to the
protection of the environment. The Court says that none of these treaties provide a “universal and
comprehensive” prohibition on the use of nuclear weapons.
o Then, the Court says that the “most directly relevant applicable law” is the UN Charter provisions
relating to the use of force and those laws that govern armed conflict. However, it finds that both
of these legal regimes also do not expressly prohibit, nor permit, the use of nuclear weapons.
o In terms of customary law, the Court finds that the opinio juris on the prohibition of the use of
nuclear weapons differs amongst States, as reflected in the content and voting patterns of General
Assembly resolutions, their views on deterrence and the non use of nuclear weapons in the recent
past.
o The Court concludes that there is no comprehensive and universal prohibitions on the threat or
use of nuclear weapons under treaty law or customary law.

o If international law does not explicitly prohibit the threat or use of nuclear weapons, is their use
regulated under international law?
o Thus far, the Court has concluded that there are no provisions in international law that authorizes
or prohibits the threat or use of nuclear weapons by States. The Court now goes a step further to
examine if the threat or use of these weapons is regulated under international law.
o The Court finds as follows:
o UN Charter: Court had established that the UN Charter did not permit or prohibit the use any
type of weapons. However, it finds that for the a threat or use of force in self defense to be
lawful under Article 51 of the UN Charter, the use of nuclear weapons must be necessary and
proportionate to the armed attack against which self-defense is exercised. The Court says
that the use of nuclear weapons may be proportionate in certain circumstances
o International humanitarian law: The Court goes on to hold that even if the threat or use of
nuclear weapons is lawful under the UN Charter (in other words, when it is necessary and
proportionate), it must still meet the requirements of laws regulating armed conflicts,
including international humanitarian law and principles relating to neutrality.

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 o The Court finds that it cannot conclude that the recourse of nuclear weapons “would be illegal
in any circumstances or if the use of nuclear weapons was inherently and totally incompatible
with international humanitarian law.
o The Court also finds that it could not reach a conclusion on the legality or illegality of the use of
nuclear weapons in “an extreme case of self defense”. The Court also highlights the
“fundamental right of every State to survival”
o The Court didn’t elaborate on what would constitute an extreme case of self-defense nor
address whether a State having nuclear weapons (a nuclear State) can use it in the defense of
another non-nuclear State when that second State’s very existence is threatened.
o The Court finds that:
1. Articles 2(4), 42, and 51 of the UN Charter that relates to the legality on the use of force, is
silent on the specific weapons that can be used when using force.
2. International humanitarian law treaties (part of those laws governing armed conflict),
including the Hague Convention IV of 1907 and the Geneva Protocol of 1925 have been
understood in State practice, as not covering nuclear weapons. Similarly, other
humanitarian law treaties governing weapons of mass destruction, like the Biological and
Chemical Weapons Conventions, also do not contain prohibitions on the use of nuclear
weapons.
3. The Court also points out that those treaties that specifically relate to nuclear weapons only
limit its use, but does not support a general prohibition.
o The Court finds that the members of the international community are profoundly divided on
the matter of whether non-recourse to nuclear weapons over the past 50 years constitutes the
expression of opinio juris.
o Under these circumstances the Court does not consider itself able to find that there is such an
opinio juris… The emergence of a customary rule specifically prohibiting the use of nuclear
weapons as such is hampered by the continuing tensions between the nascent opinio juris on
the one hand, and the still strong adherence to the practice of deterrence on the other.

SUBJECTS OF INTERNATIONAL LAW

• Orthodox Positivist Doctrine that States are the only subjects of International Law. According to
Oppenheim, states only and exclusively are subjects of international law.
• Non-state entities such as native people were often ignored, in Island of Palmas case,
Eastern Greenland case
• Private individuals were not considered subjects of international law, no system of general
human rights at the international level existed. Protection of the person and property
occurred through diplomatic protection, state represented persons and property of its
nationals as was in Mavrommatis Palestine Concessions case of 1924 (The dispute was
initially between a private person (Mavrommatis, a Greek national)
and a State (Britain).Greece took up Mavrommatis’ case and filed it before the PCIJ,
alleging that Great Britain, through the Palestine Government,
had refused to recognize the concession in Jerusalem and Jaffa and accordingly
sought compensation. Britain imposed its preliminary objection and argued
that Greece had no standing in this case. Greece argued that it is entitled to protect its
subjects such as Mavrommatis when they have been injured by acts
contrary to international law by another state.
• 20 century developments:
th

• Growth of international organizations

• Decolonization and break up of states like USSR, Yugoslavia, Czechoslovakia.
• Acknowledgement of personality of native peoples (in Western Sahara Advisory Opinion)

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 • Development of idea of individual and collective human rights (UDHR, ECHR, ICCPR,
ICESCR)
• Importance of non-state actors in many fields- MNCs, NGOs
• Kelsen’s view that only individuals are the subjects of international law; individuals are the
grundnorm.
• Modern view that States are the primary subjects of international law, but individuals,
international organizations and non-state entities are also subjects of international law.

State

• Salmond defines state as a community of people which has been established for some objectives
such as internal order and external security
• According to Oppenheim, existence of State is possible only when people of state have settled
under highest government authority and habitually follow its orders.
• Starke has pointed out that definition of state is not possible but it can be discussed by its essential
elements.

State and Statehood

• 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 provides that the state as an international person should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter into relations with other states.
• The Arbitration Commission of the European Conference on Yugoslavia in Opinion No. 1 declared
that ‘the state is commonly defined as a community which consists of a territory and a population
subject to an organised political authority’ and that ‘such a state is characterised by sovereignty’.

Criteria of Statehood

1. Permanent Population
2. Definite Territory (Disputed borders)
3. Government (Distinction between State and Government- state is a legal person, and it can exist
without a present government)- Govt. has to be a legitimate govt. according to international rules
and procedure. Could be some sort of coherent political structure and society.
4. Sovereignty- expresses internally the supremacy of the governmental institutions and externally
the supremacy of the state as a legal person.Judge Huber noted in the Island of Palmas case that
sovereignty in relation to a portion of the surface of the globe is the legal condition necessary for
the inclusion of such portion in the territory of any particular state. It is a formal statement that
the state is subject to no other sovereignty and is unaffected either by factual dependence upon
other states or by submission to the rules of international law.

Different kinds of States and Non-state entities

1. Confederation- European Union

2. Federal State- USA, Switzerland, India
3. Condominium- Sovereignty of England and France over New Hebrides. The territory became
independent on 30 July 1980 as the state of Vanuatu.

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 4. Vassal State- Tibet (was earlier a protectorate of China)
5. Protectorate- Bhutan

State Territory

• State Territory has been defined as that portion which is subjected to the sovereignty of a state
• There can be no state without a defined territory.
• Beyond inland waters, sovereignty of a coastal state extends to maritime belt, also called
territorial waters.
• Sovereignty is represented through the jurisdiction of a state on its territory/ territorial boundary
which also includes the territorial sea.

Modes of Acquisition of State Territory

1. Occupation- In Eastern Greenland Case (1933), PCIJ propounded two principles (Denmark and Norway
were contesting their sovereignty over Eastern Greenland):
(i) it is necessary for the occupation over the territory that there should be an intention to establish
sovereignty over the territory concerned
(ii) There should be some actual exercise of such authority
2. Prescription (Title by prescription also called acquisitive prescription)- State to fulfil following
conditions:
(i) State not to accept sovereignty of that portion by any other state
(ii) Possession to be peaceful and uninterrupted
(iii) Possession should be in public
(iv) Possession should be for a definite period
3. Accretion- New territory is added through natural causes; could also be by artificial means
4. Cession- Cession could be voluntary or may be under compulsion as a result of war. Cession shall be
considered valid only when sovereignty of a territory is transferred to another state. (Indian teen bigha
land to Bangladesh)
5. Annexation- Conquest
6. Lease- Island of Malta to Britain on lease
7. Pledge- Republic of Geneo pledged Island of Corsica to France
8. Plebiscite
9. Acquisition of territorial sovereignty by newly emerged states

Modes of Loss of State Territory

1. Cession
2. Operation of Nature
3. Subjugation
4. Prescription
5. Revolt
6. Dereliction (Renunciation)
7. Granting of independence to a colony by an Imperialist state

Recognition

• Recognition is a method of accepting certain factual situations and endowing them with legal
significance

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 • Institute of International Law defined Recognition as a free act by which one or more states
acknowledge the existence of a definite territory of a human society politically organized
independent of any other existing states and capable of observing obligations of international law
which they manifest through their intention to consider it a member of international community.
• Fenwick- through recognition, members of international community formally acknowledge that
the new state has acquired international personality
• Recognition of a state is an act by which another state acknowledges that the recognized state
possesses the essential conditions of statehood.
• Recognition as a criteria of statehood can de discussed under two theories-
(1) Constitutive (Hegel, Anzilloti, Oppenheim)
(2) Declaratory (Hall, Brierly, Pitt Corbett and Fischer)
• Modes of Recognition: Defacto and Dejure
• Consequences of Non-recognition:
1. Unrecognized state cannot sue
2. Not entitled to enter into diplomatic relations
3. No diplomatic immunities from legal processes in foreign states
4. Cant get property situated in a foreign state
• Implied and Express Recognition
• Individual and Collective Recognition

Rights and Duties of State

• Rights of a State
• Sovereignty and independence
• Sovereign equality of states
• Territorial jurisdiction
• Right to self-defence
• Duties of a State
• Not to resort to war
• To fulfil treaty obligations
• Duty of non-intervention
• Respect for HR and fundamental freedoms
• Ensure international peace
• Settle disputes by peaceful means

Self-Determination

• All peoples have the right to self-determination. By virtue of that right they freely determine their
political status and determine their own form of economic, social and cultural development.
• Principle of Self-determination is embodied in the UN charter.
• Article 1(2) of the UN charter provides that the purpose of the UN is to base friendly
relations among nations on principle of self-determination, i.e. "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”.
• Article 55 of the UN Charter, building upon Article 1, states that "peaceful and friendly
relations among nations based on respect for the principle" of self-determination are to be
developed”

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• Resolution 1514 (XV), the Declaration on the Granting of Independence to Colonial Countries
and Peoples, adopted in 1960 by eighty-nine votes to none, with nine abstentions (also called the
Colonial Declaration), stressed:“All peoples have the right to self-determination; by virtue of that
right they freely determine their political status and freely pursue their economic, social and
cultural development”.
• GA Resolution 1514 further added to transfer all powers to the people of those territories, without
any conditions or reservations, in accordance with their freely expressed will and desire, without
any distinction as to race, creed or color, in order to enable them to enjoy complete independence
and freedom.
• The Declaration is supplemented by General Assembly Resolution 1541 (XV), Resolution 2621
(XXV) embodying the 1970 Programme of Action for the Full Implementation of the [1960]
Declaration,'" and more importantly Resolution 2625 (XXV) containing the 1970 Declaration on
Principles of International Law Concerning Friendly Relations and Co-operation among States
("1970 Declaration" or "International Law Principles Declaration").''
• According to GA Resolution 1541, adopted in 1960, colonial powers were instructed to allow for
self-government in their colonies either through the creation of independent state, autonomy
under an existing independent state, or full integration with another state, according to the will of
he colonized population.
• The 1970 Declaration reaffirms the principle of self-determination as a right, providing that "by
virtue of the principle of... 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."'
• In 1966, the General Assembly adopted the International Covenants on Human Rights. Both
these Covenants have an identical first article, declaring that ‘all peoples have the right to self-
determination. By virtue of that right they freely determine their political status and freely pursue
their economic, social and cultural development’.
• Defining Self-determination: The principle of self-determination provides that the people of the
colonially defined territorial unit in question may freely determine their own political status. Such
determination may result in independence, integration with a neighbouring state, free association
with an independent state or any other political status freely decided upon by the people
concerned.
• Self-determination also has a role within the context of creation of statehood, reserving the
sovereignty and independence of states, in providing criteria for the resolution of disputes, and in
the area of the permanent sovereignty of states over natural resources.
• The principle of self-determination of peoples has given birth to a number of newly independent
States. It has served the decolonization process largely generated by the two World Wars.
• After the first world war, the breakup of the Ottoman Empire resulted in the independence of new
sovereigns such as Iraq, Syria, Jordan, Lebanon, Palestine and Saudi Arabia. The Austro-Hungarian
Empire dissolved into Yugoslavia, Hungary, Czechoslovakia and Austria.
• The end of second world war gave a major push to the principle of self-determination by way of
decolonization, resulting in independence from major European colonial powers of new nation-
States in virtually every part of the world
• The Court in the East Timor (Portugal v. Australia) case declared that Portugal’s assertion that
the right of peoples to self-determination, as it evolved from the Charter and from United Nations
practice, has an erga omnes character, is irreproachable.’
• In Namibia case, the Court emphasised that ‘the subsequent development of international law in
regard to non-self-governing territories as enshrined in the Charter of the United Nations made
the principle of self-determination applicable to all of them’.
• The Western Sahara case reaffirmed this point. The case arose out of the decolonisation of that
territory, controlled by Spain as the colonial power but subject to claims by Morocco and

20
 Mauritania. The Court was asked for an opinion with regard to the legal ties between the territory
at that time and Morocco and the Mauritanian entity. The Court stressed that the request for an
opinion arose out of the consideration by the General Assembly of the decolonisation of Western
Sahara and that the right of the people of the territory to self-determination constituted a basic
assumption of the questions put to the Court.
• The Court concluded that the ties which had existed between the claimants and the territory
during the relevant period of the 1880s were not such as to affect the application of resolution
1514 (XV), the Colonial Declaration, in the decolonisation of the territory and in particular the
right to self-determination. In other words, it is clear that the Court regarded the principle of self-
determination as a legal one in the context of such territories
• The Court emphasised that the right of peoples to self-determination was ‘one of the essential
principles of contemporary international law.
• The issue of self-determination came before the Supreme Court of Canada in Reference Re
Secession of Quebec in 1998 in the form of three questions posed. The second question asked
whether there existed in international law a right to self-determination which would give Quebec
the right unilaterally to secede. The Court declared that the principle of self-determination ‘has
acquired a status beyond “convention” and is considered a general principle of international law’.

Aspects of Self Determibation

• Self-determination has two aspects-

• Internal self-determination and
• External self-determination
• Internal self-determination is the right of the people of a state to govern themselves without
outside interference.
• External self-determination is the right of peoples to determine their own political status and to be
free of alien domination, including formation of their own independent state. However,
independence is not the only possible outcome of an exercise of self-determination.

Examining Self Determination

• Who is and can be the "self'?

• What "determination" can be made under what circumstances?
• Does the principle of self-determination apply to any territorial unit of an existing State?
• Where the principle does apply, does it include the right to secede unilaterally from the parent
State?

• In international law, the right of self-determination that became recognized in the 1960s was
interpreted as the right of all colonial territories to become independent or to adopt any other
status they freely chose.
• Ethnic or other distinct groups within colonies did not have a right to separate themselves from
the "people" of the territory as a whole. Today, the right of groups to govern themselves is
increasingly intertwined with human rights norms, in particular the rights of minorities and
indigenous peoples.
• While no right to secession has yet been recognized under international law, it is possible that
such a right may be accepted in the future as an exceptional measure, if a distinct group of people
is systematically denied the right to participate in the government of the state or if individuals
within such a group suffer systematic and gross violations of human rights that make their
participation in that state impossible.

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 • The principle states that:
"If the majority (or we might demand a higher percentage) of the adult population of a geographic
area expresses its wish, for any reason, to separate from the territorial unit of which it is currently
a part, it has the right to do so."
• A modified version of this right, and one that would also fit a situation:
"If the majority of the adult population of a geographic area expresses its wish to separate from
the territorial unit of which it is currently a part because the government of the territorial unit
does not represent the whole people, it has the right to do so.”

Uti Possidetis Juris

• Uti possidetis (Latin for "as you possess") is a principle in international law that territory and
other property remains with its possessor at the end of a conflict, unless otherwise provided for
by treaty; if such a treaty does not include conditions regarding the possession of property and
territory taken during the war, then the principle of uti possidetis will prevail.
• Uti possidetis juris (UPJ) is a principle of customary international law that serves to preserve the
boundaries of colonies emerging as States.
• Originally applied to establish the boundaries of decolonized territories in Latin America, UPJ has
become a rule of wider application, notably in Africa.
• The policy behind the principle has been explained by the International Court of Justice in
the Frontier Dispute (Burkina Faso/Mali) Case- wherein a question pertaining to a border dispute
was tabled before the International Court of Justice by Burkina Faso and Mali, which got
independence in 1960 after decolonization. It was held that an obligation exists to respect pre-
existing international frontiers in the event of a state succession.

INTERNATIONAL ORGANIZATIONS

Historical Evolution

• The 19th century witnessed a considerable growth in international non-governmental

associations, such as the ICRC (founded in 1863) and the International Law Association
(founded in 1873). These private international unions demonstrated a wide-ranging community
of interest on specific topics, and an awareness that co-operation had to be international to be
effective. Such unions created the machinery for regular meetings and many established
permanent secretariats.
• The work done by these organisations is of considerable value in influencing governmental
activities and stimulating world action.
• In addition, there developed during the course of the 19 th century a series of public international
unions. These were functional associations linking together governmental departments or
administrations for specific purposes, and set up by multilateral treaties.
• In 1865 the International Telegraphic Union was set up with a permanent bureau or secretariat
and nine years later the Universal Postal Union was created. This combined a permanent bureau
with periodic conferences, with decisions being taken by majority vote.
• The latter half of the 19th century was marked by the proliferation of public international
unions, covering transportation, communications, health and economic co-operation. These
unions restricted themselves to dealing with specific areas and were not comprehensive, but they
introduced new ideas which paved the way for the universal organisations of the 20 th century.
• International organisations (or institutions) have now become indispensable.

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 • In a globalised world they facilitate co-operation across state frontiers, in a wide range of subjects,
from peacekeeping and peace enforcement to environmental, economic and human rights
concerns.
• The innovation of the 20th century was, of course, the creation of the global, comprehensive
organisations of the League of Nations in 1919 and the United Nations in 1945.
• UN works in association with its specialised agencies. These are organisations established by
inter-governmental agreement and having wide international responsibilities in economic, social,
cultural and other fields that have been brought into relationship with the United Nations.
• Most of the specialised agencies have devised means whereby the decisions can be rendered
virtually binding upon members. For example- ILO (established in 1919 to protect and extend the
rights of workers), UNESCO (the UN educational, scientific and cultural organisation established
to further the increase and diffusion of knowledge by various activities, including technical
assistance and co-operative ventures with national governments) and the WHO (established in
1946 with the aim of unifying the standards of health care).
• Although such institutions are not able to legislate in the usual sense, they are able to apply
pressures quite effectively to discourage non-compliance with recommendations or
conventions.
• The IBRD (the world bank) emerged from the Bretton Woods conference of 1944 to encourage
financial investment, and works in close liaison with the IMF, which aims to assist monetary co-
operation and increase world trade.
• A number of international economic arrangements and institutions (not being specialised
agencies) of increasing importance have been established, i.e. The GATT which later paved way for
WTO.
• The proliferation of regional institutions, linking together geographically and ideologically related
states, since the close of the second world war, has been impressive.

Defining IO

• International organisations have been defined in international treaties simply as ‘inter-

governmental organisations’ in order to demonstrate that the key characteristic of such groupings
is that their membership comprises states.
• The ILC in Article 2 of its draft Articles on the responsibility of international organisations refers
to ‘an organisation established by a treaty or other instrument governed by international
law and possessing its own legal personality’, while noting that international organisations
‘may include as members, in addition to states, other entitites’.
• Amerasinghe refers to organisations ‘normally created by a treaty or convention to which
states are parties and the members of the organisation so created are generally states’ and
points to basic characteristics such as establishment by international agreement among states,
possession of a constitution, possession of organs separate from its members, establishment
under international law, and either exclusive or predominant membership of states or
governments.
• The public international organiations may have a wide-ranging, open or universal membership
(such as the UN and the specialised agencies) or may have a limited or closed membership (such
as the African Union).
• Organisations may have a wider or narrower range of functions, depending upon their
constitution, with the UN as a good example of the former and WHO as a good example of the
latter.
• Whether a grouping will be regarded as an international organization will depend essentially
upon whether it in fact possesses some or all of the criteria noted above.

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Legal Personality

• When personality is established under international law, they become subjects of international
law and capable of enforcing rights and duties
• Not all arrangements by which two or more states co-operate will necessarily establish separate
legal personality. It was held by the ICJ in Nauru v. Australia that the arrangements under which
Australia, New Zealand and the UK became the joint ‘administering authority’ for Nauru in the
Trusteeship Agreement approved by the UN in 1947 did not establish a separate international
legal personality distinct from that of the states.
• The possession of international personality meant that the organization was a subject of
international law and capable of having international rights and duties and of enforcing them by
bringing international claims.
• Legal personality can be inferred from the objects and purposes of the international organization.
• In the Reparation for injuries suffered in the service of the United Nations case the court held
that the UN had international legal personality because this was indispensable in order to achieve
the purposes and principles specified in the charter. In other words, it was a necessary inference
from the functions and rights the organisation was exercising and enjoying. The court emphasised
that it had to be: acknowledged that its [i.e. UN’s] members, by entrusting certain functions to it,
with the duties and responsibilities, have clothed it with the competence required to enable those
functions to be effectively discharged.
• In the said case, the court examined the UN charter and subsequent relevant treaties and practice
to determine the constitutional nature of the UN and the extent of its powers and duties. It noted
the obligations of members towards the organisation, its ability to make international agreements
and the provisions of the charter contained in Articles 104 and 105, whereby the UN was to enjoy
such legal capacity, privileges and immunities in the territory of each member state as were
necessary for the fulfilment of its purposes.
• The court emphasised that: fifty states, representing the vast majority of the members of the
international community, had the power in conformity with international law, to bring into being
an entity possessing objective international personality, and not merely personality recognised by
them alone.
• Article 104 of the UN charter itself provides that the UN ‘shall enjoy in the territory of each of its
members such legal capacity as may be necessary for the exercise of its functions and the
fulfilment of its purposes’.
• Most international organisations need to operate within particular states and thus require that
their personality be recognised not only within international law but also within particular
domestic law in order to be able to make and defend claims and generally to perform legal acts in
domestic law.
• All international legal persons will have some rights and duties (and by definition rights and
duties distinct from those of the members of the organisation), they will not all have the same
capacities. The question of how such rights and duties may be enforced or maintained will also
depend upon the circumstances. States are recognised as possessing the widest range of rights
and duties, those of international organisations are clearly circumscribed in terms of express
powers laid down in the constituent instruments or otherwise evolved through practice.
• International organisations are expressly created by states by formal decision as laid down in
their constituent instruments. The very nature, status and authority of such organisations will
therefore depend primarily upon the terms of the constituent instruments or constitutions under
which they are established.
• International organisations are unlike states that possess a general competence as subjects of
international law. They are governed by the principle of speciality, so that, as the International

24
 Court has noted, ‘they are invested by the states which create them with powers, the limits of
which are a function of the common interests whose promotion those states entrust to them’
• The establishment of an international organization with international personality results in the
formation of a new legal person, separate and distinct from that of the states creating it.
• The ICJ noted in the Reparation case that ‘when an infringement occurs, the organisation should be
able to call upon the responsible state to remedy its default, and, in particular, to obtain from the
state reparation for the damage that the default may have caused’ and emphasised that there
existed an ‘undeniable right of the organization to demand that its members shall fulfil the
obligations entered into by them in the interest of the good working of the organization’.
• Responsibility is a necessary consequence of international personality and the resulting
possession of international rights and duties. Such rights and duties may flow from treaties, such
as headquarters agreements.

Individuals

• Individuals as a general rule lack standing to assert violations of international treaties

• In the Danzig Railway Officials (1928) case, the PCIJ emphasised that under international law,
treaties did not as such create direct rights and obligations for private individuals, although
particular treaties could provide for the adoption of individual rights and obligations enforceable
by the national courts where this was the intention of the contracting parties. In this case,
Poland acquired the Railway company under an international agreement. And in the said
agreement it agreed to provide facilities to the officials of the Railway company, which they later
refused and hence argued that international agreement is a kind of a treaty and individuals do not
possess rights under a treaty. This argument was rejected by the court.
• Under the provisions of the 1919 Peace treaties, it was possible for individuals to apply directly
to an international court in particular instances.
• Also, the tribunal created under the Upper Silesia Convention of 1922 decided that it was
competent to hear cases filed by the nationals of a state against that state.
• Other examples are European Convention on Human Rights, 1950; the Inter-American Convention
on Human Rights, 1969; the Optional Protocol to the ICCPR, 1966; the International Convention
for the Elimination of all forms of Racial Discrimination, 1965 and the Convention on the
Settlement of Investment Disputes, 1965.
• The rights of individuals in international law have evolved significantly in the post-1945 era.
• Those committing piracy or slave trading have long been regarded as guilty of crimes against
international society bearing direct responsibility, for which they may be punished by
international tribunals or by any state at all.
• ‘International law imposes duties and liabilities upon individuals as well as upon states’ as ‘crimes
against international law are committed by men, not by abstract entities, and only by punishing
individuals who commit such crimes can the provisions of international law be enforced’- as
propounded by the Nuremberg and Tokyo Tribunal
• The Genocide Convention of 1948 called for prosecutions by either domestic courts or ‘an
international penal tribunal’.
• Individual responsibility has also been confirmed with regard to grave breaches of the four 1949
Geneva Red Cross Conventions and 1977 Additional Protocols I and II dealing with armed
conflicts
• International Convention on the Suppression and Punishment of the Crime of Apartheid of 1973
declared apartheid to be an international crime involving direct individual criminal responsibility

Positions of Individuals under IL

25
 • Individuals are considered as subjects of international law.
• The importance of individuals under international law can be highlighted as under-
• Pirates as enemies of mankind and responsibility of states to apprehend and punish them
• Conduct of foreigners to some extent regulated under international law
• War criminals punished under international law
• Espionage considered crime under international law
• Under certain treaties, individuals can claim compensation/ damages against the state.
• The UN charter given a place of importance to rights of individuals.
• The international human rights law developed for the protection of rights of the individuals
• Asylum and Extradition deal with individuals but are covered under international law

ASYLUM

• The word "asylum" is the Latin counterpart of the Greek word "asylon," which means freedom
from seizure. Historically, asylum has been regarded as a place of refuge where one could be free
from the reach of a pursuer.
• “The practice of asylum is as old as humanity itself'
• Asylum means shelter and active protection extended to political refugee on his request.
• Asylum consists of
1. Shelter more than temporary refuge
2. Degree of active protection

Three Faces of Right to Asylum

1. The Right of a State to Grant Asylum:

o The right of a state to grant asylum is well established in international law. It follows from
the principle that every sovereign state is deemed to have exclusive control over its
territory and hence over persons present in its territory. One of the implications of this
generally recognized rule is that every sovereign state has the right to grant or deny
asylum to persons located within its boundaries.'
o Declaration on Territorial Asylum adopted by the General Assembly of the United Nations
in 1967 provides in Article 1(1) that, “Asylum granted by a State, in the exercise of its
sovereignty, to persons entitled to invoke Article 14 of the Universal Declaration of Human
Rights,... shall be respected by all other States."' Further, Article 1(3) of this Declaration
vests the state of asylum with the authority "to evaluate the grounds for the grant of
asylum.'
o Convention on Territorial Asylum adopted by the Organization of American States in
1954, stipulates in Article 1 that, "every State has the right, in the exercise of its
sovereignty, to admit into its territory such persons as it deems advisable, without, through
the exercise of this right, giving rise to complaint by any other State.‘
o In 1977, the Council of Europe adopted a Declaration on Territorial Asylum and in Article
2, it reaffirms the right of states to grant asylum.

2. The Right of an Individual to Seek Asylum:

o The second aspect of the right of asylum is the right of an individual to seek asylum. This is
an individual right that an asylum-seeker has vis-a-vis his state of origin.
o Article 13(2) of the UDHR proclaims that, "everyone has the right to leave any country,
including his own”. With the adoption of the ICCPR, the right of an individual to leave his
country became written law binding on the states parties to the Covenant.' Article 12(2) of
the Covenant states that, "everyone shall be free to leave any country, including his own."

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 o European Convention for the Protection of Human Rights and Fundamental Freedoms"
proclaims that, "everyone shall be free to leave any country, including his own. ' Similarly,
the American Convention on Human Rights' stipulates in Article 22(2) that, "every person
has the right to leave any country freely, including his own.

3. The Right of an Individual to be Granted Asylum:

o The third component right under the umbrella of the right of asylum is the right of an
individual to be granted asylum. In international law today, an individual has no right to
asylum enforceable vis-d-vis the state of refuge.
o Article 14(1) of the UDHR proclaims the right of an individual "to seek and to enjoy in other
countries asylum from persecution." Scholars agree that this provision merely affords the
individual a right to seek asylum, not a right to receive it.
o States should normally refrain from measures such as rejection at frontier of persons
seeking asylum as provided by UN Declaration on Territorial Asylum adopted by G.A. in
1967

Types of Asylum

1. Territorial Asylum: IN own territory. It is an attribute of territorial sovereignty of the state. Asylum to
be respected by other states, once given, it can not be rejected or asylee cannot be returned or expelled
which endangers his life.
2. Extra-territorial Asylum: It is for temporary period, there will be binding local laws and this could be
in Foreign Embassies, consulates, premises of international institutions, warships.

EXTRADITION

o Delivery of criminals;
o surrender/ handing over of fugitives.
o Originates from the social need to punish criminals.
o Oppenheim defines it as delivery of an accused or convicted individual to the state on whose territory
it is alleged to have committed or to have been convicted of a crime, by the state on whose territory
the alleged criminal happens to be for the time being.
o Basis is:
o A Treaty
o Reciprocity
o Duty of each state to punish criminal or return the criminal.
o No general duty to extradite unless there is a treaty and a request

Purpose of Extradition

1. Suppression of crime
2. Warning to criminals that they cannot escape
3. Interest of territorial state
4. Based on reciprocity
5. Achievement of international cooperation
6. Evidence more freely available in territory of commission of offence

Essential Conditions for Granting Extradition:

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 1. Non-extradition of political criminals: Began with French revolution of 1789, consideration of
humanity, fear that they wont be treated fairly, not dangerous to other state
o Re Castioni 1891, Swiss govt. asked Castioni from the UK, he murdered member of state
council of canton of Ticinio. There was political dissatisfaction prevailing.
o Re Munier 1894, Anarchist, two explosions in Paris café and barracks. Fled to UK, not a
political offence.
2. Not allowed for military criminals
3. Not allowed for religious criminals
4. Rule of Specialty
o U.S. v. Rauscher, 1886; US sought extradition from UK on ground of murder of a fellow servant
in American ship but was being tried for hurt. US Supreme Court rejected it.
5. Rule of Double Criminality
6. Prima facie case
7. Accused need not be in the state (when crime was committed) which seeks extradition- Mobarak
Ali Ahmed v. State of Bombay, 1957 SC
8. States don’t extradite own citizens generally.

Cases:
Savarkar (1911): Indian revolutionary apprehended by French officials, handed over to the British
officials under wrong impression. Extradition was not allowed
Sucha Singh: Murdered the CM of Punjab- Mr. Pratap Singh Kairon, extradition from Nepal
Dharam Teja: embezzlement, fled to Ivory Coast- no treaty, later to UK, extradited under treaty
Nadeem’s case: Accused in murder case of Mr. Gulshan Kumar

STATE SUCCESSION

Introduction

 The 1978 Vienna Convention on Succession of States in Respect of Treaties defines state
succession as
“the replacement of one state by another in the responsibility for the international relations of
territory” (Article 2 (1)(b)).
 Decolonization, unification, and separation are the possible occurrences of state succession.
 Decolonization is the accession to independence of a non-metropolitan territory.
 Unification of states is the merger of two or more states into a new entity. The
predecessor states usually disappear; if not, one of them continues to exist and the case is
referred to as absorption.
 Separation is the creation of the successor state(s) while the predecessor state continues
to exist. Dismemberment is akin to separation, but all states disappear and two or more
states are created.
 The issue of state succession can arise in a number of defined circumstances, for example,
decolonisation of all or part of an existing territorial unit, dismemberment of an existing state,
secession, annexation and merger.
 Succession is merger or absorption of one state by another state or states. State succession is
distinguished from govt. succession. When succession takes place then a state loses itself fully or a
part of its territory while in case of govt. succession only the organization of a govt. or
constitutional structure changes.
 Succession in respect of treaties is the most prevalent field of state succession, and the Vienna
Convention on Succession of States in Respect of Treaties is dedicated to this issue.

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  There are two relevant Conventions, the Vienna Convention on Succession of States in Respect
of Treaties, 1978, which entered into force in 1996, and the Vienna Convention on Succession
of States in Respect of State Property, Archives and Debts, 1983, which is not yet in force.
However, many of the provisions contained in these Conventions reflect existing international law.
 Succession to State Responsibility aims to hold the successor state responsible for its predecessor
wrongs.
 The rule of state succession was incorporated from the Roman Law by Grotius. In Roman law
when a person dies his rights and duties are succeeded by his successor.
 A state may lose part of its territory, or it may lose all of it. Loss of territory may result in the
enlargement of one or more states. When a succession situation arises, the point of legal interest is
the effect on the international rights and obligations of the state or states concerned.
 Despite attempts to assimilate Roman law, views regarding the continuity of the legal personality
in the estate which falls by inheritance, could not be sustained in the light of state interests and
practice.
 The opposing doctrine, which basically denied any transmission of rights, obligations and
property interests between the predecessor and successor sovereigns, arose in the heyday of
positivism in the nineteenth century.
 It manifested itself again with the rise of the decolonisation process in the form of the ‘clean slate’
principle, under which new states acquired sovereignty free from encumbrances created by
the predecessor sovereign.
 In many cases, succession related problems are dealt with by treaties, whether multilateral
treaties, for example, the Treaty of St Germain, 1919, which resolved some succession questions
relating to the dissolution of the Austro-Hungarian Empire, or bilateral agreements as between,
for instance, colonial power and new state, which, however, would not bind third states. The
system of devolution agreements signed by the colonial power with the successor, newly
decolonised state, was used by, for example, the UK, France and the Netherlands.
 The German Federal Supreme Court noted in the Espionage Prosecution case that ‘the problem of
state succession is one of the most disputed areas of international law’.
 The international aspects of succession are governed through the rules of customary international
law.

Kinds of Succession

 State succession are of two types (1) Universal Succession (2) Partial Succession
 Universal Succession: If the legal identity of a community is completely destroyed there is said
to be universal succession of states. Universal succession takes place when a state is completely
absorbed by another, either through subjugation or through voluntary merger. Universal
succession takes place under the following circumstances:
(a) When the territory of a state is forcibly annexed by other state.
(b) When a state voluntary merges into one or several states.
(c) When one state is divided into several states and several states are formed.
 Partial Succession: When as a result of civil war or war of liberation, a part of state breaks off
and takes up an independent position. Partial succession takes place under the following
circumstances:
(a) When a part of the state revolts and after achieving freedom becomes a separate
international person.
(b) When a part of state is ceded to another state.
(c) When a state accepts the suzerainty or becomes a protectorate of another state.

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Rights and Duties Arising Out of State Succession

 When a state takes the place of another state following rights and duties arise.
(1) Political Rights and Duties: No Succession takes place in respect of political duties and rights.
The succession state is not bound by the treaties of peace or neutrality entered into by the extinct
state.
(2) Local rights and duties: In respect of land, rivers, roads, railways etc., the succeeding state
succeeds the rights and duties of the former state.
(3) Debts: It depends on the discretion of succeeding state whether to pay or not to pay the public
debts of the former state.
(4) Nationality: The nationals of the former state lose their nationality at the extinction of the
state and becomes the nationals of new state.
(5) Laws: As far as the law of the former states are concerned, civil law continues until it is
changed by the succeeding state.
(6) Public funds and public property: The successor state takes over the public funds and public
property of the predecessor state.
 The relevant date of succession is the date at which the successor state replaces the predecessor
state in the responsibility for the international relations of the territory to which the
succession relates. This is invariably the date of independence.
 Where a new entity emerges, one has to decide whether it is a totally separate creature from its
predecessor, or whether it is a continuation of it in a slightly different form. For example, it seems
to be accepted that India is the same legal entity as British India and Pakistan is a totally new state.
 Yugoslavia was generally regarded as the successor state to Serbia, and Israel as a completely
different being from British mandated Palestine
 Cession or secession of territory from an existing state will not affect the continuity of the latter
state, even though its territorial dimensions and population have been diminished. Pakistan after
the independence of Bangladesh is a good example of this. In such a case, the existing state
remains in being, complete with the rights and duties incumbent upon it, save for those
specifically tied to the ceded or seceded territory.

USSR

 Where, however, a state is dismembered so that all of its territory falls within the territory of two
or more states, these rights and duties will be allocated as between the successor states.
 Upon the demise of the USSR, the Russian Federation took the position that it was the
continuation of that state. This was asserted particularly with regard to membership of the UN.
 Of great importance was the Decision of the Council of Heads of State of the Commonwealth of
Independent States on 21 December 1991 supporting Russia’s continuance of the membership of
the USSR in the UN, including permanent membership of the Security Council, and other
international organisations.
 Although not all of the instruments produced by the Commonwealth of Independent States at the
end of 1991 were strictly consistent with the continuity principle, it is clear that Russia’s claim to
be the continuation of the USSR (albeit within different borders of course) was supported by the
other former Republics and was accepted by international practice
 https://www.youtube.com/watch?v=EMF7mgycg9M

Baltic States

 A rather special situation arose with respect to the Baltic states (Estonia, Latvia and Lithuania),
which became independent after the First World War, but were annexed by the Soviet Union in

30
 1940. This annexation had been refused recognition by some states and accepted de facto but not
de jure by some others.
 The Baltic states declared their independence in August 1991. The European Community adopted
a Declaration on 27 August 1991 welcoming ‘the restoration of the sovereignty and independence
of the Baltic states which they lost in 1941’. The United States recognised the restoration of the
independence of the Baltic states on 4 September 1991.
 The implication of this internationally accepted restoration of independence would appear to be
that these states do not constitute successor states to the former USSR and would therefore be
free of such rights and obligations as would be consequential upon such succession

SFRY

 The issue of Yugoslavia has been more complicated and tragic. The collapse of the Socialist Federal
Republic of Yugoslavia (the SFRY) took place over several months as the various constituent
republics proclaimed independence. The process was regarded as having been completed in the
view of the Arbitration Commission on Yugoslavia by the time of its Opinion No. 8 issued on 4 July
1992.
 The Commission noted that a referendum had been held in Bosnia and Herzegovina in February
and March 1992 producing a majority in favour of independence, while Serbia and Montenegro
had established ‘a new state, the “Federal Republic of Yugoslavia”’ on 27 April 1992. The
Commission noted that the common federal bodies of the SFRY had ceased to function, while
Slovenia, Croatia and Bosnia had been recognised by the member states of the European
Community and other states and had been admitted to membership of the UN. The conclusion was
that the former SFRY had ceased to exist. This was particularly reaffirmed in Opinion No. 10.
 Nevertheless, the Federal Republic of Yugoslavia (Serbia and Montenegro) continued to maintain
that it constituted not a new state, but the continuation of the former SFRY. This claim was
opposed by the other former republics of the SFRY and by the international community
 The Security Council, for example, in Resolution 777 (1992) declared that ‘the state formerly
known as the Socialist Federal Republic of Yugoslavia has ceased to exist’ and that ‘the Federal
Republic of Yugoslavia (Serbia and Montenegro) cannot continue automatically the
membership of the former Socialist Federal Republic of Yugoslavia in the United Nations’.
However, the Yugoslav position changed in 2000 and it requested admission to the UN as a new
member. The question as to the legal status of Yugoslavia as between 1992 and 2000 remained a
source of some controversy, since its admission to the UN in 2000 could not operate retroactively.
 The International Court in 2003 described this situation as sui generis and fraught with legal
difficulties, but in its judgment in the series of cases brought by Yugoslavia against NATO
members following the Kosovo conflict in 1999, the Court concluded that Yugoslavia had been a
member of the UN (and thus a party to the Statute of the Court) from 1 November 2000 and that
the sui generis status of that state could not have amounted to membership of the UN. Accordingly,
while in 1996 the Court decided that Yugoslavia could appear before it in the Genocide Convention
(Bosnia v. Serbia) case, it held in 2003 that the situation as to Yugoslavia’s status was sui generis
and not without legal difficulty but finally decided in 2004 that Yugoslavia could not bring an
action against NATO states as it had not been a member of the UN and thus a party to the
Statute in 1999. In its decision on the merits in the Genocide Convention case in 2007, the Court
noted that its decision of 1996 constituted res judicata and could not be re-opened in the light of
its subsequent rulings
 State succession also covers the situation of unification. One method of unification is by the
creation of a totally new state, such as the merger of the Yemen Arab Republic and the People’s
Democratic Republic of Yemen. Under the agreement between the two states of 22 April 1990 the

31
 establishment of the Republic of Yemen was accomplished by way of a merger of the two existing
states into a new entity with a new name.
 Unification may also be achieved by the absorption of one state by another in circumstances
where the former simply disappears and the latter continues, albeit with increased territory and
population. Such was the case with Germany.
 Following the conclusion of the Second World War, Germany was divided into the US, USSR, UK
and French zones of occupation and a special Berlin area not forming part of any zone. Supreme
authority was exercised initially by the Commanders-in-Chief of the Armed Forces of the Four
Allied Powers and subsequently by the three Allied High Commissioners in Bonn, with parallel
developments occurring in the Soviet zone.
 The Convention on Relations between the Three Powers and the Federal Republic of Germany
(FRG), which came into force in 1955, terminated the occupation regime and abolished the Allied
High Commission. The Three Allied Powers retained, however, their rights and obligations with
regard to Berlin and relating to ‘Germany as a whole, including the reunification of Germany and a
peace settlement’. Recognition of the German Democratic Republic (GDR) was on the same basis,
i.e. as a sovereign state having full authority over internal and external affairs subject to the rights
and responsibilities of the Four Powers in respect of Berlin and Germany as a whole. Accordingly,
it was accepted that in some sense Germany as a whole continued to exist as a state in
international law.

Germany

 On 18 May 1990 a treaty between the two German states was signed establishing a Monetary,
Economic and Social Union. In essence this integrated the GDR into the FRG economic system,
with the Deutsche Mark becoming legal tender in the GDR and with the Bundesbank becoming the
central bank for the GDR as well as for the FRG. On 31 August 1990, a second treaty was signed
between the two German states which provided for unification on 3 October 1990 by the
accession of the GDR under article 23 of the Basic Law of the Federal Republic. The Treaty
between the Federal Republic of Germany and the German Democratic Republic of 31 August
1990 clearly provided that the latter (GDR) was simply assimilated into the former (FRG).
Article 1 of the Treaty stipulated that, ‘upon the accession of the German Democratic Republic to
the Federal Republic of Germany in accordance with article 23 of the Basic Law taking effect on 3
October 1990, the L¨ander of Brandenburg, Mecklenburg- Western Pomerania, Saxony, Saxony-
Anhalt and Thuringia shall become L¨ander of the Federal Republic of Germany’
 In other words, the view taken by the parties directly concerned and accepted by the international
community demonstrates acceptance of the unification as one of the continuity of the Federal
Republic of Germany and the disappearance or extinction of the German Democratic
Republic.
 The principle of succession to colonial borders was underlined by the International Court in the
Burkina Faso/Mali case. The extension of the principle of uti possidetis from decolonization to the
creation of new states out of existing independent states is supported by international practice,
taking effect as the transformation of administrative boundaries into international boundaries
generally.
 This principle regarding the continuity of borders in the absence of consent to the contrary is
reinforced by other principles of international law, such as the provision enshrined in Article
62(2) of the Vienna Convention on the Law of Treaties, which stipulates that a fundamental
change in circumstances may not be invoked as a ground for terminating or withdrawing from a
treaty that establishes a boundary. In addition, Article 11 of the Vienna Convention on Succession
to Treaties, although in terminology which is cautious and negative, specifies that
 A succession of States does not as such affect:

32
 (a) a boundary established by treaty; or
(b) obligations and rights established by a treaty and relating to the regime of a boundary.
 The International Court dealt with succession to boundary treaties generally in the Libya/Chad
case, where it was declared that ‘once agreed, the boundary stands, for any other approach would
vitiate the fundamental principle of the stability of boundaries, the importance of which has been
repeatedly emphasised by the Court’. More particularly, the Court emphasised that ‘a boundary
established by treaty thus achieves a permanence which the treaty itself does not
necessarily enjoy. The treaty can cease to be in force without in any way affecting the
continuance of the boundary.

Succession to Treaties Generally

 Practice seems to suggest ‘a tendency’ or ‘a general inclination’ to succession to ‘some categories

of multilateral treaties’ or to ‘certain multilateral conventions’ However, this ‘modern-classical’
approach is difficult to sustain as a general rule of comprehensive applicability. One simply has to
examine particular factual situations, take note of the claims made by the relevant states and mark
the reactions of third states. In the case of bilateral treaties, the starting-point is from a rather
different perspective.
 In such cases, the importance of the individual contractual party is more evident, since only two
states are involved and the treaty is thus more clearly reciprocal in nature. Accordingly, the
presumption is one of non-succession, depending upon all the particular circumstances of the
case. Practice with regard to the US, Panama, Belgium and Finland supports the ‘clean slate’
approach.

Absorption and Merger

 Where one state is absorbed by another and no new state is created (such as the 1990 accession to
the Federal Republic of Germany of the L¨ander of the German Democratic Republic), the former
becomes extinct whereas the latter simply continues albeit in an enlarged form. The basic
situation is that the treaties of the former, certainly in so far as they may be deemed
‘political’, die with the state concerned, although territorial treaties defining the
boundaries of the entity absorbed will continue to define such boundaries. However, treaties
of the absorbing state continue and will extend to the territory of the extinguished state. These
principles are, of course, subject to contrary intention expressed by the parties in question.
 Article 31(1) of the Vienna Convention on Succession to Treaties provides that where two or more
states unite and form one successor state, treaties continue in force unless the successor state and
the other state party or states parties otherwise agree or it appears that this would be
incompatible with the object and purpose of the treaty or would radically change the conditions
for its operation.
 Article 31(2) provides that such treaties would apply only in respect of the part of the territory of
the successor state in respect of which the treaty was in force at the date of the succession of
states.

Cession of Territory from One State to Another

 When part of the territory of one state becomes part of the territory of another state, the general
rule is that the treaties of the former cease to apply to the territory while the treaties of the latter
extend to the territory.
 Article 15 of the Vienna Convention on Succession of States to Treaties, dealing with this ‘moving-
frontiers’ rule, provides for this, with the proviso that where it appears from the treaty

33
 concerned or is otherwise established that the application of the treaty to the territory would be
incompatible with the object and purpose of the treaty or would radically change the condition for
its operation, this extension should not happen.
 When, for example, the US annexed Hawaii in 1898, its treaties were extended to the islands and
Belgium was informed that US–Belgium commercial agreements were thenceforth to be applied to
Hawaii also.

Secession from an existing state to form a new state or states

 The factual situations out of which a separation or dismemberment takes place are many and
varied. They range from a break-up of a previously created entity into its previous constituent
elements, as in the 1961 dissolution of the United Arab Republic into the pre-1958 states of Egypt
and Syria
 Where there is a separation or secession from an independent state which continues, in order to
create a new state, the former continues as a state, albeit territorially reduced, with its
international rights and obligations intact. With regard to the seceding territory itself, the
leading view appears to be that the newly created state will commence international life free
from the treaty rights and obligations applicable to its former sovereign. Reasons for this
include the important point that it is difficult to maintain as a rule of general application that
states that have not signed particular treaties are bound by them.
 When Belgium seceded from the Netherlands in 1830, it was deemed to start international life
with ‘a clean slate’ and the same approach was adopted with regard to the secession of Cuba from
Spain in 1898 and that of Panama from Colombia in 1903. Similarly, when Finland seceded from
the Russian Empire after the First World War, the view taken by the UK and the US was that
Finland was not bound by the existing Russian treaties dealing with the territory.

 Any treaty which applied only to part of the territory of the predecessor state which has become a
successor state will continue in force in respect of the latter only (successor). Article 35 provides
that existing treaties remain in force after the succession in respect of the remaining territory,
unless the parties otherwise agree or it is established that the treaty related only to the territory
which has separated from the predecessor state or it appears from the treaty or is otherwise
established that the application of the treaty in respect of the predecessor state would be
incompatible with the object and purpose of the treaty or would radically change the conditions
for its operation.

STATE JURISDICTION

Jurisdiction

■ Power of a state to affect, people, property and circumstances

■ Legal Competence which a state enjoy over its territory
■ Closely linked with territory
■ Prescriptive and Enforcement Jurisdiction- these are concurrent and exclusive
■ Civil and Criminal
■ Broadly it may be divided into Territorial and Extra-territorial Jurisdiction
■ Can be Prescriptive and Enforcement

Basis of Jurisdiction

■ Territoriality Principle

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 ■ Nationality Principle/ Active Personality Principle
■ Passive Personality Principle
■ Protective Principle
■ Universality principle

Territoriality Principle

■ Principle of domestic jurisdiction

– Not interfere in other’s affairs
– Setting rules for grant of nationality
■ Nottebohm Case, It was held by the ICJ that the state can make law for rules of
acquisition of nationality, but diplomatic protection is covered under international
law
– Circumstances when aliens may enter
– International law limits and reduces extent of domestic jurisdiction; domestic jurisdiction is
being eroded- examples being reaffirmed under Article 2(7); South Africa’s domestic policy of
apartheid has been condemned; G.A. Resolution of self-determination, Human Rights
violations
■ Domestic jurisdiction can be understood as- legislative jurisdiction (only to make binding laws);
executive jurisdiction (state to act only within borders, cant enforce laws on foreign territory) and
judicial jurisdiction (try cases within the country, even where foreign element/ factor is present)
■ Territorial Jurisdiction can be based on subjective territorial principle and objective territorial
principle
■ State to prosecute offences on their soil
■ Responsibility of state to maintain law and order
■ Convenience is the major factor, also because witnesses are present
■ Lockerbie case
– On December 21, 1988, a bomb exploded in the cargo hold of Pan Am Flight 103, killing all
259 passengers and crew, as well as eleven residents of the town of Lockerbie where the
wreckage of the Boeing 747 crashed 31,000 feet below. Though neither country had an
extradition treaty with Libya, the United States and United Kingdom both demanded that
Libya immediately surrender Al-Meghrahi and Fhimah to them for trial. Libya refused to
comply with the United States and United Kingdom demands.
– Libya filed a case in the ICJ against US/ UK. Before the ICJ, Libya claimed that it had not signed
any extradition treaty with the UK and the US, and that, subsequently and in conformity with
the 1971 Montreal Convention (Articles 5 and 7), which requires a State to establish its own
jurisdiction over alleged offenders present in its territory and in the event of their non-
extradition, only Libyan authorities had jurisdiction to try their own citizens.
– Later in1994, Libya proposed trial before a Scottish court, provided it sat in a neutral country
such as the Netherlands. At first, the United States and United Kingdom rejected the offer,
believing it to be merely a propaganda ploy. During the next few years, however, it became
increasingly clear that, despite sanctions, the two Libyans would not be surrendered for
trial. Finally, in August 1998, the British Government of Tony Blair persuaded the United
States to agree to Libya's plan. On April 6, 1999, Al-Megrahi and Fhimah arrived at in the
Netherlands. Later that day, pursuant to Security Council Resolution 1192 (1998), the U.N.
sanctions were suspended when Secretary-General Kofi Annan communicated formally to the
Security Council the successful handover of the two accused.
■ Lotus case (France v. Turkey, 1927)- Principle of constructive presence
■ Immunities from Territorial Jurisdiction-

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 – Diplomatic Agents (Ex Petroff case of 1971, decided by Australian SC when explosives were
thrown on Russian Chancery)
– Foreign Embassies
– Foreign Sovereigns (Schooner Exchange v. McFaddon of 1812- French naval vessel in
Philadelphia for repair, possession was sought on grounds that it was US ship seized by
France on High seas in 1810. Held that vessel is exempt from jurisdiction; Mighell v. Sultan of
Johore of 1894, Parliament Belge of 1880- Belgian mail vessel also being used for commercial
purpose, collided with British ship, sought compensation, but no jurisdiction)
– Property of Foreign Sovereign (Schooner Exchange case)
– Foreign Troops/ Armed forces
– Foreign warships and their crew
– International Organizations (Convention on Privileges and Immunities of UN 1947)

Nationality Principle

■ Nationality can be attained by-

– By birth
– By descent
– By Naturalization
– By Marriage (not now)
■ Certain advantages are attached to the nationals-
– Obtaining valid passport to travel
– Right to vote
– Right to various Govt. jobs
■ States not to mistreat nationals of other states- can’t be forced to serve in their armed forces
■ Nationality of ships under Article 91 of UNCLOS 1982
■ Nationality of aircrafts under Article 17 of CCCA 1944
■ Nottebohm’s case (Liechtenstein v. Guatemala, 1955)
■ Nottebohm (P), was born in Germany in 1881, lived in Guatemala (D) for 34 years, retaining his
German citizenship and family and business ties with it. He however applied for Liechtenstein (P)
citizenship (in 1939) a month after the outbreak of World War II. Nottebohm (P) had no ties with
Liechtenstein but intended to remain in Guatemala. The naturalization application was approved
by Liechtenstein and impliedly waived its three-year. After this approval, Nottebohm (P) travelled
to Liechtenstein and upon his return to Guatemala (D), he was refused entry because he was
deemed to be a German citizen. His Liechtenstein citizenship was not honored.
■ Liechtenstein (P) thereby filed a suit before the International Court to compel Guatemala (D) to
recognize him as one of its national. Guatemala (D) challenged the validity of Nottebohm’s (P)
citizenship, the right of Liechtenstein (P) to bring the action and alleged its belief that Nottebohm
(P) remained a German national.
■ ICJ held that nationality was a legal manifestation of the link between person and state granting
nationality and recognition that person was more closely connected with that state than with any
other state
■ The court agreed with Guatemala and held that claims by Lichtenstein were inadmissible.
Although the Court stated that it is the sovereign right of all states to determine its own citizens
and criteria for becoming one in municipal law, such a process would have to be scrutinized on the
international plain in questions of diplomatic protection. The Court upheld the principle of
effective nationality, where the national must prove a meaningful connection to the state in
question. This principle was previously applied only in cases of dual nationality to determine
which nationality should be used in a given case. However, Nottebohm had forfeited his German
nationality and thus only had the nationality of Liechtenstein.

36
Passive Personality Principle

■ Jurisdiction to try individuals for offence committed abroad but have affected or will affect
nationals of the state
■ Cutting case of 1886
– Cutting, a US national published defamatory statement against Mexican in Texas, arrested in
Mexico
■ US v. Yunis (No. 2) of 1988
– Lebanese citizen Yunis, hijacked Jordanian airliner, arrested in international waters by the US
officials

Protective Principle

■ States may exercise jurisdiction over alien committed act abroad which is deemed prejudicial to
the security of the particular state concerned.
■ Joyce v. Director, Public Prosecutor, 1946
– Born in US, in 1933 acquired British passport on basis of having being born in Ireland. In
1939, shifted to Germany and started working for German radio. After 2nd world war, UK tried
him for treason. Whether UK had jurisdiction? It was held that he owed allegiance to crown,
and it was his breach of duty
■ Abdul Cader v. Union of India, 1977 Madras HC
– Petitioner was carrying on smuggling from outside the country, never entered India,
jurisdiction was held over the crime

Universality Principle

■ Each and every state has jurisdiction over such crimes, Offensive to international community
■ Piracy- may punish if apprehended on high seas
■ Crimes against humanity, war crimes, genocide and crimes against peace
■ Eichmann case of 1961 (Attorney-General of the Government of Israel v. Adolf Eichmann)
– Adolf Eichmann (defendant) was a German Nazi officer involved in the internment and
extermination of Jewish people during World War II. When the war ended, Eichmann
escaped to Argentina, where years later, he was kidnapped by Israeli officers and forcibly
brought to Israel for trial for war-crime charges. Eichmann challenged the Israeli court’s
jurisdiction, arguing that the court was not empowered to adjudicate the case against
Eichmann because his illegal kidnapping by Israeli agents violated international law. The
attorney general of Israel (plaintiff) contended that the legality of the means of arrest and
of the transfer of a fugitive were not relevant jurisdictional issues for the court to address.
Additionally, at the time of Eichmann’s seizure, Argentina complained to the United Nations
Security Council (Security Council), alleging a violation of Argentina’s sovereignty by
Israel’s actions. The Security Council issued a Resolution, recognizing that Israel’s conduct
would disrupt international relations if the conduct were permitted in the future, and
requesting that Argentina and Israel reach an agreement on the settlement of the dispute.
As a result, before Eichmann’s indictment, Argentina and Israel settled the issue, with
Argentina clearing Israel of responsibility for any violations related to Eichmann’s
kidnapping. The Supreme Court of Israel then considered Eichmann’s challenge to Israel’s
jurisdiction.
– The judges found Eichmann guilty as charged and sentenced him to death. His execution by
hanging took place at 1:00 a.m. on June 1, 1962. Eichmann's body was cremated. The ashes

37
 were scattered over the Mediterranean Sea, beyond Israel's territorial waters but not
beyond Israeli identity and Jewish consciousness.
– http://www.history.com/topics/world-war-ii/nazi-party/videos/adolf-eichmann-on-trial

STATE RESPONSIBILITY

 Sovereign has no obligation under Law.

 But States have obligations under International Law (vis-à-vis other states)
 A breach of an international obligation gives rise to a requirement for reparation
 State Responsibility concerning International duties is a legal responsibility because it arises out
of treaties, customs (basically international law)
 State cannot abolish or create international law
 The rules of international law as to state responsibility concerns the circumstances in which and
principles whereby injured state becomes entitled to redress for damage suffered.

Traditional View
 Limited to the obligation to make reparation
 Responsibility only if damages/ injury occurs

Present View
Notion of Responsibility modified
 Elimination of damage as a condition for engagement of responsibility for breach

Question of Fault

 The principle of objective responsibility (the ‘risk’ theory) maintains that the liability of the state
is strict. Once an unlawful act has taken place, which has caused injury and which has been
committed by an agent of the state, that state will be responsible in international law to the state
suffering the damage irrespective of good or bad faith.
 The subjective responsibility concept (the ‘fault’ theory) emphasises that an element of
intentional (dolus) or negligent (culpa) conduct on the part of the person concerned is necessary
before his state can be rendered liable for any injury caused.
 Majority opinion of international community is in the objective responsibility (strict liability)

The laws of state responsibility are the principles governing when and how a state is held responsible for
a breach of an international obligation.
 Laws of State Responsibility include-
(1) the conditions for an act to qualify as internationally wrongful, (Breach)
(2) the circumstances under which actions of officials, private individuals and other entities
may be attributed to the state, (Attribution)
(3) general defences to liability (Defences) and
(4) the consequences of liability. (Remedies)

Cases Determining SR

 Chorzow Factory (Indemnity) Case 1928 PCIJ: PCIJ observed that it is a principle of international
law and even a general conception of law that any breach of an engagement involves an
obligation to make reparation.

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  Corfu Channel Case 1949 ICJ: ICJ held that Albania was responsible for explosions and observed
“These grave omissions involve the international responsibility of Albania” and “… there is a duty
upon Albania to pay compensation to the UK”.

 State responsibility during wars…. Article 3 of the Hague Convention 1907…. If belligerent state
violates rules of war, it shall be responsible for payment of compensation and it is responsible
for the acts committed by persons of armed forces.

Development of Rules of State Responsibility

 Hague Convention 1907

 Hague Conference of 1930 (League’s 1930 Codification Conference- reached Agreement on
Imputation)
 ILC’s attention in 1948 to codify rules…. ILC appointed First Rapporteur in 1955… but his work
was abandoned… second rapporteur in 1969 upto 1980 Prof. Ago made an attempt to codify rules
and established the basic organisational structure of what would become the Draft Articles. Third
Rapporteur worked from 1980-1986 on definition of injured state. Fourth Rapporteur worked on
this from 1988- 1996. In 1997, ILC appointed Prof. Crawford as a Special Rapporteur from 1998-
2001 and he undertook second reading of the draft before which it was finally submitted and
adopted.
 ILC Draft Articles was then divided into four parts, 59 articles-
 Part I- Origin of International Responsibility – determining grounds and circumstances under
which state may be held to have committed an international wrongful act which is a source of
international responsibility and elements of internationally wrongful acts, defences
 Part II- content, form and degrees of international responsibility, determination of
consequences that a wrongful act of a state has under international law (reparative and
punitive consequences of international wrongful act)- consequences
 Part III- settlement of disputes and implementation
 Part IV- Final provisions
 ILC Articles on Responsibility of States for Internationally Wrongful Acts 2001
 Article 1 Responsibility of States for Internationally wrongful acts
 Article 2 Elements of Internationally wrongful acts of a state
 When conduct consisting of an act or commission is:
o attributable to state under international law
o Constitutes a breach of international obligation of the state

Elements of internationally wrongful act

(1) Attribution- Before a state can be held responsible for any action, it is necessary to prove a causal
connection between the injury and an official act or omission attributable to the state alleged
to be in breach of its obligations. The state is responsible for all actions of its officials and organs,
even if the organ or official is formally independent and even if the organ or official is acting ultra
vires.
(2) Breach-The act of the state must constitute a breach of an obligation of the state under
international law. (The obligation arises out of a treaty or a customary international law)

Article 4. Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international law,
whether the organ exercises legislative, executive, judicial or any other functions, whatever position it

39
holds in the organization of the State, and whatever its character as an organ of the central Government
or of a territorial unit of the State.
2. An organ includes any person or entity which has that status in accordance with the internal law of the
State.
In the Genocide Convention (Bosnia v. Serbia) case, it was regarded as ‘one of the cornerstones of the
law of state responsibility, that the conduct of any state organ is to be considered an act of the state under
international law, and therefore gives rise to the responsibility of the state if it constitutes a breach of an
obligation of the state’.
Article 7 Excess of authority or contravention of instructions:
The conduct of an organ of a State or of a person or entity empowered to exercise elements of the
governmental authority shall be considered an act of the State under international law if the organ,
person or entity acts in that capacity, even if it exceeds its authority or contravenes instructions.
Inter-American Court of Human Rights in Velásquez Rodríguez case held:
This conclusion [of a breach of the Convention] is independent of whether the organ or official has
contravened provisions of internal law or overstepped the limits of his authority: under international law
a State is responsible for the acts of its agents undertaken in their official capacity and for their
omissions, even when those agents act outside the sphere of their authority or violate internal law.
Rule also confirmed in Article 91 of AP I to GC

 An unlawful act may be imputed to the state even where it was beyond the legal capacity of the
official involved, providing, as Verzijl noted in the Caire case, that the officials ‘have acted at least
to all appearances as competent officials or organs or they must have used powers or methods
appropriate to their official capacity’.
 In the Sandline case, the Tribunal emphasised that, ‘It is a clearly established principle of
international law that acts of a state will be regarded as such even if they are ultra vires or
unlawful under the internal law of the state

Article 10 Conduct of an insurrectional or other movement

1. The conduct of an insurrectional movement which becomes the new Government of a State shall be
considered an act of that State under international law.
2. The conduct of a movement, insurrectional or other, which succeeds in establishing a new State in
part of the territory of a pre-existing State or in a territory under its administration shall be considered
an act of the new State under international law.
3. This article is without prejudice to the attribution to a State of any conduct, however related to that of
the movement concerned, which is to be considered an act of that State by virtue of articles 4 to 9.
Article 10 deals with the special case of attribution to a State of conduct of an insurrectional or other
movement which subsequently becomes the new Government of the State or succeeds in establishing a
new State.

Article 41 Particular consequences of a serious breach of an obligation under this chapter

1. States shall cooperate to bring to an end through lawful means any serious breach within the meaning
of Article 40.
2. No State shall recognize as lawful a situation created by a serious breach within the meaning of Article
40, nor render aid or assistance in maintaining that situation.
3. This article is without prejudice to the other consequences referred to in this Part and to such further
consequences that a breach to which this chapter applies may entail under international law.
Art. 40 refers to serious breach by a State of an obligation arising under a peremptory norm of general
international law

Article 48. Invocation of responsibility by a State other than an injured State

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1. Any State other than an injured State is entitled to invoke the responsibility of another State in
accordance with paragraph 2 if:
(a) the obligation breached is owed to a group of States including that State, and is established for the
protection of a collective interest of the group; or
(b) the obligation breached is owed to the international community as a whole.
2. Any State entitled to invoke responsibility under paragraph 1 may claim from the responsible State:
(a) cessation of the internationally wrongful act, and assurances and guarantees of non-repetition in
accordance with article 30; and
(b) performance of the obligation of reparation in accordance with the preceding articles, in the interest
of the injured State or of the beneficiaries of the obligation breached.
3. The requirements for the invocation of responsibility by an injured State under articles 43, 44 and 45
apply to an invocation of responsibility by a State entitled to do so under paragraph 1.

Kinds of SR

 Original Responsibility- for work of its govt.

(state is in direct breach of legal obligations binding on it under international law)
 Vicarious Responsibility- for citizens and work of its agents.(State’s responsibility is limited to
preventive measures- to secure that wrongdoer makes suitable reparation and if necessary to
punish him- these preventive and remedial obligations of state in vicarious responsibility is an
obligation- breach of which states bears direct responsibility)

Consequences of SR

1. International Delinquency (Any injury to another state committed by Head of State in violation of
international legal duty… is a wrongful act committed by a state which is not a breach of a purely
contractual obligation… may include ordinary breaches of treaty obligations, unjustified
intervention)
2. Responsibility for injury to Aliens (Duty to exercise due diligence)
o For acts of private individuals
o For acts of mob-violence
o US Diplomatic and Consular Staff in Tehran 1980…. ICJ held that militants became agents of the
state
o Reparations for Injuries Suffered in the Service of UN 1949… Count Bernadotte and a French
observer to mediate in conflict between Arabs and Jews in Palestine (State’s responsibility
towards the International Organizations)
3. For acts of insurgents
o Calvo Doctrine … Calvo of Argentina… no responsibility for losses suffered by foreigners/
aliens during civil war
4. State Responsibility for acts of Govt. organs (where officials have acted out of their powers and
jurisdiction)
5. State Responsibility for acts with foreigners- (No international responsibility… only local
remedies)
6. State Responsibility for Breach of Treaty or Contractual Obligations
7. State Responsibility for Expropriation of Foreign Property (Appropriate compensation in
accordance with rules in force in state provided no inequality)
8. Liability for the Acts of Multinational Corporations
o For Hazardous wastes

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 o For Environment (right of each state to regulate and supervise the activities of TNCs within its
national jurisdiction and to take measures to ensure that such activities complies with its laws,
rules and regulations)

Defences to State Liability

1. Consent (Article 20)

2. Counter-measure in respect of internationally wrongful act (Article 49 to 52)- Article 49 provides
that an injured state may only take counter-measures against a state responsible for the wrongful
act in order to induce the latter to comply with the obligations consequent upon the wrongful act.
3. Force majeure (Article 23)… Rainbow warrior case between France and New Zealand, The issue of
force majeure was raised by France in the Rainbow Warrior arbitration in 1990. It was argued that
one of the French agents repatriated to France without the consent of New Zealand had to be so
moved as a result of medical factors which amounted to force majeure. The Tribunal, however,
stressed that the test of applicability of this doctrine was one of ‘absolute and material
impossibility’ and a circumstance rendering performance of an obligation more difficult or
burdensome did not constitute a case of force majeure…. Force majeure has long been accepted as
precluding wrongfulness, although the standard of proof is high. In the Serbian Loans case, for
example, the Court declined to accept the claim that the First World War had made it impossible
for Serbia to repay a loan.
4. 4. Distress (Article 24)- The difference between distress and force majeure is that in the former
case there is an element of choice.
5. 5. State of necessity (Article 25)- Article 25 provides that necessity may not be invoked unless the
act was the only means for the state to safeguard an essential interest against a ‘grave and
imminent peril’ and the act does not seriously impair an essential interest of the other state or
states or of the international community as a whole
6. Self-defence (Article 21)

Consequences of Breach (Internationally wrongful act)

(1) Cessation and non-repetition (Article 30)- The state responsible for the internationally
wrongful act is under an obligation to cease that act, if it is continuing, and to offer appropriate
assurances and guarantees of non-repetition if circumstances so require.
(2) Reparation (Article 31)- includes restitution, compensation and satisfaction (Art. 34, 35, 36 &
37)- 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.
(1) Restitution in kind is the obvious method of performing the reparation, since it aims
to re-establish the situation which existed before the wrongful act was committed.
(2) Punitive or exemplary damages go beyond the concept of reparation as such and were
indeed held in Vel´asquez Rodrigu´ez v. Honduras (Compensation) to be a principle ‘not
applicable in international law at this time’. Compensation is usually assessed on the
basis of the ‘fair market value’ of the property lost, although the method used to
calculate this may depend upon the type of property involved.
(3) Satisfaction constitutes a third form of reparation. This relates to non-monetary
compensation and would include official apologies, the punishment of guilty minor
officials or the formal acknowledgement of the unlawful character of an act.
o The Tribunal in the Rainbow Warrior arbitration pointed to the long-established practice of states
and international courts of using satisfaction as a remedy for the breach of an international
obligation, particularly where moral or legal damage had been done directly to the state. In the

42
 circumstances of the case, it concluded that the public condemnation of France for its breaches of
treaty obligations to New Zealand made by the Tribunal constituted ‘appropriate satisfaction’
o Article 37 of the ILC Articles provides that a state responsible for a wrongful act is obliged to give
satisfaction for the injury thereby caused in so far as it cannot be made good by restitution or
compensation. Satisfaction may consist of an acknowledgement of the breach, an expression
of regret, a formal apology or another appropriate modality. An example of such another
modality might be an assurance or guarantee of non-repetition.

INTERACTION BETWEEN DOMESTIC AND INTERNATIONAL LAW

• With advancement of communications and role played by international law in effecting national
laws, there is an increasing interpenetration of international law and domestic law across a
number of fields, such as human rights, environmental and international investment law, where
at the least the same topic is subject to regulation at both the domestic and the international level
(and indeed the regional level in the case of the European Union)
• There are cases where the same situation comes before both national and international courts,
which may refer to each other’s decisions in a complex process of interaction. For example, the
failure of the US to allow imprisoned foreign nationals access to consular assistance in violation of
the Vienna Convention on Consular Relations, 1963 was the subject of case-law before the
International Court of Justice, the Inter-American Court of Human Rights and US courts, while
there is a growing tendency for domestic courts to be used to address violations of international
law.
• The State practices pertaining to incorporation of International Law into municipal law have been
explained by two schools of thought.
• The schools of law on the relationship between international law and national laws (municipal
laws) are - Monist and Dualist.

Monist

• Monistic theory was propounded in the Eighteenth century and was put forward by two German
scholars Moser (1701- 1785) and Martens (1756- 1821). According to this doctrine, there
exists only one set of legal system that is the domestic legal order. This theory was further
developed by Kelsen, an Austrian jurist.
• This approach does not distinguish between International Law from national law of states.
• Accordingly, rules of International Law does not need to be transformed into national/ municipal
law through any further national legislation and the rules of International Law can be applied as
such by municipal courts. The rules of International Law including those in the treaty
automatically become effective and incorporated in the Municipal law as soon as the State ratifies
a treaty.
• The monists are united in accepting a unitary view of law as a whole and are opposed to the strict
division posited by the positivists.
• Kelsen emphasises the unity of the entire legal order upon the basis of the predominance of
international law by declaring that it is the basic norm of the international legal order which is
the ultimate reason of validity of the national legal orders too.
• In a monist state, the court can declare any national rule of law invalid if it contradicts with the
international rule of law and thus establishes superiority/ supremacy of International Law
even within the municipal sphere.
• The Netherlands and Germany are the examples of states having monist approach. Many States
expressly accept International Law as part of their domestic law while others do not accept so.

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 • Where International Law becomes incorporated in a State’s domestic law without the need for
specific legislation, those parts of it, which are sufficiently explicit to be enforceable by the
domestic courts, are known as ‘self executing’. Some States provide by their Constitutions that
certain provisions of International Law shall be self-executing. For example, the Constitution of
the U.S.A., provides that international treaties are part of the law of the land. Other countries have
gone even further by not only making International Law self executing, but assigning to it a rank in
the domestic hierarchy superior to all prior and subsequent legislation. Examples of this are
France and Germany. But there are other States that do not accept any International Law as self-
executing, or so accept it in part, for example United Kingdom (U.K.), and these States are dualistic.

Dualist School

• According to dualist theory, International Law and municipal laws are two distinct, separate and
self-contained legal systems. And so, International Law would not as such form part of the national
law of the state.
• In such a state, legislature must pass law to give effect to the treaty since ratification of a treaty by
the concerned state does not result in automatic incorporation in domestic legal system. This
view was propounded by German scholar Triepel in 1899, and further developed by Italian jurist
Anzilotti. This theory represents that International Law has different character from that of
national law.
• This theory is supported by the positivists. One expression of the positivist–dualist position has
been the doctrine of transformation.
• According to dualist school of thought, the municipal courts shall apply municipal law in case of a
conflict between International Law and municipal law. Therefore, municipal law has primacy
over International Law according to this theory.
• The U.K. follows dualist pattern. In Britain, International Law becomes part of law of land only
when it is accepted in national law through legislation. A treaty has no effect in municipal law until
an Act of Parliament is passed to give effect to it.
• International Law does not determine which point of view is to be preferred. It is left to the
discretion of the states to decide according to their legal traditions and national structure.
• India, more closely, follows the dualist pattern, which is also evident from the provisions of the
Constitution.
• In the case of State of West Bengal v. Kesoram Industries Ltd. & others (AIR 2005 SC 46 at para
494), a five judge Constitutional Bench of Supreme Court observed: “It is true that the doctrine of
Monism as prevailing in the European Countries does not prevail in India. The Doctrine of Dualism
is applicable. But, where the municipal law does not limit the extent of the statute, even if India is
not a signatory to the relevant International Treaty or covenant, the Supreme Court in a large
number of cases interpreted the Statutes keeping in view the same”.

Third Approach

• A third approach, being somewhat a modification of the dualist position and formulated by
Fitzmaurice and Rousseau amongst others, the framework tied to reality.
• This approach begins by denying that any common field of operation exists as between
international law and municipal law by which one system is superior or inferior to the other. Each
order is supreme in its own sphere.
• Just as one cannot talk in terms of the supremacy of French law over English law, but only of two
distinct legal systems each operating within its own field, so it is possible to treat international law
and municipal law in the same way. They are both the legal element contained within the domestic
and international systems respectively, and they exist within different juridical orders.

44
 • Article 27 of the Vienna Convention on the Law of Treaties, 1969 lays down that in so far as
treaties are concerned, a party may not invoke the provisions of its internal law as justification for
its failure to carry out an international agreement.
• In the Polish Nationals in Danzig case, the Court declared that ‘a State cannot adduce as against
another State its own constitution with a view to evading obligations incumbent upon it under
international law or treaties in force’.
• The Court underlined this approach in the Avena case (2004) noting that ‘The rights guaranteed
under the Vienna Convention are treaty rights which the US has undertaken to comply with in
relation to the individual concerned, irrespective of the due process rights under the US
constitutional law. The Court took a step further in that case, which also concerned the failure to
allow foreign prisoners access to the consular officials of their state in breach of the Vienna
Convention on Consular Relations, declaring that ‘the remedy to make good these violations
should consist in an obligation on the US to permit review and reconsideration of these nationals’
cases by the US courts . . . with a view to ascertaining whether in each case the violation of Article
36 committed by the competent authorities caused actual prejudice to the defendant in the
process of administration of criminal justice’
• In contrast, in the Serbian Loans case of 1929 when the crucial issues turned upon the
interpretation of internal law, and that the rules of international law in a strict sense were not at
issue then. The court turned to municipal law concepts where it was found necessary in the
circumstances
• There is indeed a clear trend towards the increasing penetration of international legal rules within
domestic systems coupled with the exercise of an ever-wider jurisdiction with regard to matters
having an international dimension by domestic courts. This has led to a blurring of the
distinction between the two previously maintained autonomous zones of international and
domestic law, a re-evaluation of the role of international legal rules and a greater preparedness
by domestic tribunals to analyse the actions of their governments in the light of international law.
• The domestic courts may often have to determine the meaning of an international rule that is
relevant for a case before them.

Role of Judiciary in India in Implementing Treaty Obligations

• The courts in India have played an important role in overcoming the challenges in implementing
the provisions of treaty/ covenants to protect the rights of its citizens.
• Courts in India, in certain cases, refused to implement treaty provisions in municipal courts
without any legislation to that effect.
• But at the same time, it has upheld the provisions of human rights treaties and given effect to
those provisions where there is no contradictory municipal law. Judiciary has played an important
role over the years in realizing certain provisions of international conventions and protecting the
rights of its citizens by basing its decisions on international legal principles.
• In Xavier v. Canara Bank Limited (1969), the issue that came up before the Kerala High Court
was whether the provisions of International Covenants to which India is a party become part of
Corpus Juris of India. More specifically, whether Article 11 of the ICCPR 1966, which provides that
no one shall be imprisoned on the ground of inability to fulfil a contractual obligation, has become
part of Municipal law of the country, consequently conferring right to remedial action at the
instance of an aggrieved individual.
• The Court held that ‘The remedy for breaches of International Law in general is not found in the
courts of the state because International Law per se or proprio vigore has not the force or
authority of civil law, till actual legislation is undertaken'. It further observed that although the
UDHR sets a common standard of achievement for all peoples and all nations but individual
citizens cannot complain about their breach in municipal courts even if the country

45
 concerning has adopted the covenants and ratified the Optional Protocol. The court also stated
that the basic human rights enshrined in the International Covenants may at best inform judicial
institutions and inspire legislative action within member states but apart from such deep
reverence, remedial action at the instance of an aggrieved individual is beyond the area of judicial
authority.
• In the case of J.G. Verghese v. Bank of Cochin (1980), the Hon'ble Supreme Court also dealt with
the matter concerning effect of International Law and its enforceability at the instance of
individuals within the state (India). The apex court observed that the positive commitment of the
state parties ignites legislative action at home but does not automatically make the covenant
an enforceable part of law in India.
• Also in Magnabhai Ishwarbhai Patel v. Union of India, the Constitutional Bench of Supreme
Court held that the effect of Article 253 is that if a treaty, agreement or convention with a foreign
state deals with a subject within the competence of State Legislature, the Parliament alone has the
power to make laws to implement the treaty, agreement or convention or any decision made at
any international conference, association or other body.
• Further, in 2005, the apex court in the case of State of West Bengal v. Kesoram Industries
Limited, held that a Treaty entered into by India cannot become law of the land and it cannot be
implemented unless Parliament passes a law as mentioned under Article 253. These observations
of the Supreme Court in the above mentioned cases, only reflect the dualistic theory according to
which a treaty becomes a law of the land only after its transformation into that law by the
legislative process
• The common law countries which are following dualist pattern, requires the Act of Parliament to
transform treaty into the national legislation. But at the same time, the common law countries
maintain that the rules of international customary law are part of municipal law only if they
are not inconsistent with municipal law.
• The apex court in India has also followed this rule. In the case of People's Union for Civil Liberties
v. Union of India (1997), the Supreme Court severely regulated telephone tapping which is
permitted under Section 5(2) of the Telegraph Act. The court took into consideration the right to
privacy implicit in Article 21 and recognized by Article 12 of the UDHR 1948, and Article 17 of the
ICCPR 1966. It further held that the rules of customary International Law which are not contrary
to the municipal law shall be deemed to be incorporated in the domestic law. We have seen a shift
in the approach of the Supreme Court, as in earlier cases, the Hon'ble court held that a treaty
entered into by India cannot become law of the land but in the later case of People's Union for Civil
Liberties, the court observed that the rules of Customary International Law shall be deemed to
form part of municipal law provided it is not in contradiction to the enacted law.
• The positive approach of the Supreme Court, towards acceptability of the principles of
International Law is further heightened in the case of Vellore Citizens Welfare Forum v. Union of
India and others (1996). The Hon'ble court upheld the validity of principles of 'sustainable
development', 'polluter pays' and 'precautionary principle'. It held that 'once these principles are
accepted as part of the Customary International Law, there would be no difficulty in accepting
them as part of the domestic law. It is almost accepted proposition of law that the rules of
Customary International Law which are not contrary to the municipal law shall be deemed to have
been incorporated in the domestic law and shall be followed by the Courts of Law'.
• In Gramophone Company of India Limited v. Birendra Bahadur Pandey (1984), the Supreme
Court observed that the comity of nations requires that the rules of International Law may be
accommodated in the municipal law even without express legislative sanctions provided they do
not run in conflict with the Acts of Parliament.
• The Supreme Court has played a very important role in implementing treaty obligations in the
case of Vishaka and others v State of Rajasthan and others (1997). It is a landmark judgment
wherein the apex court while promulgating the guidelines on women's sexual harassment has

46
 held that 'in the absence of domestic law occupying the field, to formulate effective measures to
check the evil of sexual harassment of working women at all work places, the contents of
international conventions and norms are significant for the purpose of interpretation of the
guarantee of gender equality, right to work with human dignity in Article 14, 15, 19 (1)(g) and 21
of the Constitution and the safeguards against sexual harassment implicit therein. Any
international convention not inconsistent with the fundamental rights and in harmony with its
spirit must be read into these provisions to enlarge the meaning and content thereof, to promote
the object of the constitutional guarantee'.
• The court further observed that it is now an accepted rule of judicial construction that regard
must be had to the international conventions and norms for construing domestic law where there
is inconsistency between them and there is a void in the domestic law. The court referred to its
own decision in case of Nilabati Behera v. State of Orissa and others (1993). The court in this
case observed that there is no reason why these international conventions and norms cannot be
used for construing the fundamental rights expressly guaranteed in the Constitution of India.
• In Gita Hariharan v. Reserve Bank of India (1999), while interpreting the right of guardianship
of mother while father was alive (under the Hindu Minority and Guardianship) Act 1956, the
Convention on the Elimination of All Forms of Discrimination against Women was again relied on.
• Also, denying maternity benefit to some of the women employees of Municipal Corporation of
Delhi was held invalid by the SC relying on Maternity Benefit Act, 1951 read alongwith Article 11
of the above mentioned Convention in the case of Municipal Corporation of Delhi v. Female
Workers (2000)
• In a recent judgment of 2014 on recognizing transgenders as third gender and enforcing their
rights guaranteed in the Constitution as citizens of this country, the Supreme Court referred to the
provisions of international conventions. In this case titled as National Legal Services Authority v.
Union of India and others (2014), the Hon'ble Court observed that generally, a legislation is
required for implementing the international covenants, unlike the position in the USA where the
rules of International Law are applied by the municipal courts based on the theory of their implied
adoption by the state, as a part of its own municipal law. The apex court, while referring to the
Indian position with respect to the implementation of international treaty obligations into the
municipal legal system, observed that such a 'supremacy clause', as is adopted by the US, is absent
in our Constitution. Courts in India would apply the rules of International Law according to
the principles of Comity of Nations, unless they are overridden by clear rules of domestic
law.
• The court held in the later case that the covenants which India has ratified can be used by the
municipal courts as an aid to the interpretation of statutes by applying the doctrine of
harmonization. And therefore, if the Indian law is not in conflict with the international covenants,
particularly relating to human rights, to which India is a party, the domestic court can apply those
principles in Indian conditions. In the present case, the rights of transgenders and their protection
against discrimination were brought to surface and the Supreme Court gave due regard to
international conventions (Article 1, 3 and 5 of UDHR, Article 6 and 7 of ICCPR) and norms for the
protection of rights of transgender community. The court highlighted the significance of
International Conventions and the rights covered under these conventions for the third gender.
The court also referred to United Nations Convention Against Torture and Other Cruel Inhuman
and Degrading Treatment or Punishment, which deals with protection of individuals and groups
made vulnerable by discrimination or marginalization.
• The court, while interpreting Article 51 read alongwith Article 253 of the Constitution of India,
held that if the Parliament has made any legislation which is in conflict with International Law,
then Indian courts are bound to give effect to the Indian law. However, in the absence of contrary
legislation, municipal courts in India would respect the rules of International Law. Therefore, the
Indian commitment to International Treaty obligations under Constitution of India is defined

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 under Article 51(c); which although is only a Directive Principles of State Policy, yet the power of
Parliament under Article 253, to enact laws for implementing the treaty obligations is an
important provision in this direction.

SELF -DEFENCE

Exceptions to PROHIBITION OF USE OF FORCE

• According to the UN charter, there is general prohibition on the use of force. In order for force to
be legitimate, it must fall within one of the accepted exceptions.
• These are essentially:
• The Right to self-defence under Article 51 of charter
• Enforcement action mandated by the United Nations Security Council under Chapter VII of
UN charter.
• Use of force in extreme humanitarian need is still questionable.

Self Defence

• The traditional definition of the right of self-defence in customary international law arose out of
the Caroline case of 1837
• This dispute revolved around an incident in 1837 in which British subjects seized and
destroyed a vessel in an American port. This had taken place because the Caroline had been
supplying groups of American nationals, who had been conducting raids into Canadian
territory.
• After the incident, the US Secretary of State laid down the essentials of self-defence. There
had to exist ‘a necessity of self-defence, instant, overwhelming, leaving no choice of
means, and no moment for deliberation’.
• Not only were such conditions necessary before self-defence became legitimate, but the
action taken in pursuance of it must not be unreasonable or excessive, ‘since the act,
justified by the necessity of self-defence, must be limited by that necessity, and kept clearly
within it’.
• These principles were accepted by the British government at that time and are accepted as part of
customary international law.
• According to Article 51 of the UN charter,
• Nothing in the present Charter shall impair the inherent right of individual or collective self-
defence if an armed attack occurs against a member of the United Nations, until the Security
Council has taken the measures necessary to maintain international peace and security. Measures
taken by members in the exercise of this right of self-defence shall be immediately reported to the
Security Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.
• The International Court of Justice in the Nicaragua case, however, clearly established that the right
of self-defence existed as an inherent right under customary international law as well as under the
UN Charter.
• It was stressed that:
• Article 51 of the Charter is only meaningful on the basis that there is a ‘natural’ or ‘inherent’ right
of self-defence and it is hard to see how this can be other than of a customary nature, even if its
present content has been confirmed and influenced by the Charter . . . It cannot, therefore, be held
that article 51 is a provision which ‘subsumes and supervenes’ customary international law.

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 • In order to be able to resort to force in self-defence, a state has to be able to demonstrate that it
has been the victim of an armed attack and it bears the burden of proof.
• Whether use of force in self-defence can be used against non-state entities?
• On 7 October 2001, the US notified the Security Council that it was exercising its right of self-
defence in taking action in Afghanistan against the Al-Qaeda organisation deemed responsible for
the 11 September attacks and the Taliban regime in that country which was accused of providing
bases for the organization.
• A further issue is whether a right to anticipatory or pre-emptive self-defence exists. The
concept of anticipatory self-defence is of particular relevance in the light of modern weaponry that
can launch an attack with tremendous speed, which may allow the target state little time to react
to the armed assault before its successful conclusion, particularly if that state is geographically
small.
• A preemptive strike embarked upon too early might constitute an aggression.
• The concepts of necessity and proportionality are at the heart of self defence in international law.
• In the Advisory Opinion of the ICJ to the General Assembly on the Legality of the Threat or Use of
Nuclear Weapons it was emphasised that ‘[t]he submission of the exercise of the right of self-
defence to the conditions of necessity and proportionality is a rule of customary international law’.
Quite what will be necessary and proportionate will depend on the circumstances of the case.
• Whether right can be exercised to protect citizens abroad?

Collective Self-Defence

• Article 51 of the United Nations Charter recognises the right of both individual and collective self-
defence.
• Under Article 51, the right of self-defence ceases once the Security Council has taken measures
necessary to maintain international peace and security.
• Organisations such as NATO and the Warsaw Pact were established after the Second World War,
specifically based upon the right of collective self-defence under article 51. By such agreements, an
attack upon one party is treated as an attack upon all.
• The Court stressed in Nicaragua case that the right to collective self-defence was established in
customary law but added that the exercise of that right depended upon both
• a prior declaration by the state concerned that it was the victim of an armed attack and
• a request by the victim state for assistance.
• The invasion of Kuwait by Iraq on 2 August 1990 raised the issue of collective self-defence in the
context of the response of the states allied in the coalition to end that conquest and occupation.
The Kuwaiti government in exile appealed for assistance from other states.
• Whether Intervention can be allowed?

Humanitarian intervention

• It has been argued that intervention in order to protect the lives of persons situated within a
particular state and not necessarily nationals of the intervening state is permissible in strictly
defined situations.
• Practice has been in general unfavourable to the concept, primarily because it might be used to
justify interventions by more forceful states into the territories of weaker states.
• The use of Western troops was justified to secure a safe haven in northern Iraq after the Gulf War
because it was taken in pursuance of the customary international law principle of humanitarian
intervention in an extreme situation.
• Security Council resolution 688 (1991) condemned the widespread repression by Iraq of its Kurd
and Shia populations and, citing this, the US, UK and France proclaimed ‘no-fly zones’ in the north

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 and south of the country. There was no express authorisation from the UN. It was argued by the
UK that the no-fly zones were ‘justified under international law in response to a situation of
overwhelming humanitarian necessity’.
• The Kosovo crisis of 1999 raised squarely the issue of humanitarian intervention. The justification
for the NATO bombing campaign, acting out of area and without UN authorisation, in support of
the repressed ethnic Albanian population of that province of Yugoslavia, was that of humanitarian
necessity.
• It can be concluded that the doctrine of humanitarian intervention in a crisis situation was
invoked and not condemned by the UN, but it received meagre support.
• One variant of the principle of humanitarian intervention is the contention that intervention in
order to restore democracy is permitted as such under international law. One of the grounds given
for the US intervention in Panama in December 1989 was the restoration of democracy.
• External military intervention for human protection purposes has been controversial both when it
has happened – as in Somalia, Bosnia and Kosovo – and when it has failed to happen, as in
Rwanda.
• The issue is ensuring that coercive interventions are effective for some; for others, questions
about legality, process and the possible misuse of precedent loom much larger.
• More recently, there has been extensive consideration of the ‘responsibility to protect’ as a
composite concept comprising the responsibilities to prevent catastrophic situations, to react
immediately when they do occur and to rebuild afterwards.
• Government of Canada, together with a group of major foundations, announced at the General
Assembly in September 2000 the establishment of the International Commission on Intervention
and State Sovereignty (ICISS).
• Its central theme, reflected in the title, is “The Responsibility to Protect”, the idea that sovereign
states have a responsibility to protect their own citizens from avoidable catastrophe – from mass
murder and rape, from starvation – but that when they are unwilling or unable to do so, that
responsibility must be borne by the broader community of states.

Responsibility to Protect

• Basic Principles
A. State sovereignty implies responsibility, and the primary responsibility for the protection of its
people lies with the state itself.
B. Where a population is suffering serious harm, as a result of internal war, insurgency, repression
or state failure, and the state in question is unwilling or unable to halt or avert it, the principle of
non-intervention yields to the international responsibility to protect
• The responsibility to protect embraces three specific responsibilities:
A. The responsibility to prevent: to address both the root causes and direct causes of internal
conflict and other man-made crises putting populations at risk.
B. The responsibility to react: to respond to situations of compelling human need with
appropriate measures, which may include coercive measures like sanctions and international
prosecution, and in extreme cases military intervention.
C. The responsibility to rebuild: to provide, particularly after a military intervention, full
assistance with recovery, reconstruction and reconciliation, addressing the causes of the harm the
intervention was designed to halt or avert.
• The Just Cause Threshold: Military intervention for human protection purposes is an exceptional
and extraordinary measure. To be warranted, there must be serious and irreparable harm
occurring to human beings, or imminently likely to occur, of the following kind:

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 A. large scale loss of life, actual or apprehended, with genocidal intent or not, which is the
product either of deliberate state action, or state neglect or inability to act, or a failed state
situation; or
B. large scale ‘ethnic cleansing’, actual or apprehended, whether carried out by killing, forced
expulsion, acts of terror or rape.
• The Precautionary Principles: to be followed by the intervening state:
A. Right intention: The primary purpose of the intervention, whatever other motives intervening
states may have, must be to halt or avert human suffering. Right intention is better assured with
multilateral operations, clearly supported by regional opinion and the victims concerned.
B. Last resort: Military intervention can only be justified when every non-military option for the
prevention or peaceful resolution of the crisis has been explored, with reasonable grounds for
believing lesser measures would not have succeeded.
C. Proportional means: The scale, duration and intensity of the planned military intervention
should be the minimum necessary to secure the defined human protection objective.
D. Reasonable prospects: There must be a reasonable chance of success in halting or averting the
suffering which has justified the intervention, with the consequences of action not likely to be
worse than the consequences of inaction.
• Right Authority
A. There is no better or more appropriate body than the United Nations Security Council to
authorize military intervention for human protection purposes. The task is not to find alternatives
to the Security Council as a source of authority, but to make the Security Council work better than
it has.
B. Security Council authorization should in all cases be sought prior to any military intervention
action being carried out. Those calling for an intervention should formally request such
authorization, or have the Council raise the matter on its own initiative, or have the Secretary-
General raise it under Article 99 of the UN Charter.
C. The Security Council should deal promptly with any request for authority to intervene where
there are allegations of large scale loss of human life or ethnic cleansing. It should in this context
seek adequate verification of facts or conditions on the ground that might support a military
intervention.
D. The Permanent Five members of the Security Council should agree not to apply their veto
power, in matters where their vital state interests are not involved, to obstruct the passage of
resolutions authorizing military intervention for human protection purposes for which there is
otherwise majority support.
E. If the Security Council rejects a proposal or fails to deal with it in a reasonable time, alternative
options are:
• I. consideration of the matter by the General Assembly in Emergency Special Session under the
“Uniting for Peace” procedure; and
• II. action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII
of the Charter, subject to their seeking subsequent authorization from the Security Council.
F. The Security Council should take into account in all its deliberations that, if it fails to discharge
its responsibility to protect in conscience-shocking situations crying out for action, concerned
states may not rule out other means to meet the gravity and urgency of that situation – and that
the stature and credibility of the United Nations may suffer thereby.

Enforcement action by security council under chapter vii

Article 39: The Security Council shall determine the existence of any threat to the peace, breach of the
peace, or act of aggression and shall make recommendations, or decide what measures shall be taken in
accordance with Articles 41 and 42, to maintain or restore international peace and security.

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Article 40: In order to prevent an aggravation of the situation, the Security Council may, before making
the recommendations or deciding upon the measures provided for in Article 39, call upon the parties
concerned to comply with such provisional measures as it deems necessary or desirable. Such
provisional measures shall be without prejudice to the rights, claims, or position of the parties concerned.
The Security Council shall duly take account of failure to comply with such provisional measures.
Article 41: The Security Council may decide what measures not involving the use of armed force are to
be employed to give effect to its decisions, and it may call upon the Members of the United Nations to
apply such measures. These may include complete or partial interruption of economic relations and of
rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of
diplomatic relations.
Article 42: Should the Security Council consider that measures provided for in Article 41 would be
inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces as may
be necessary to maintain or restore international peace and security. Such action may include
demonstrations, blockade, and other operations by air, sea, or land forces of Members of the United
Nations.
• Whenever the Council ascertains “the existence of any threats to the peace, breaches of the peace
or acts of aggression”, Chapter VII presents its members with an exception to the general
prohibition of the use of force encompassed in Art 2(4) of the Charter.
• By passing binding resolutions under Chapter VII, the Council is entitled to authorize economic
and diplomatic sanctions or the use of military force in order to reinstate international peace and
security.

JUS AD BELLUM AND JUS IN BELLO

Two Perspectives of War

 Reasons you fight- Jus ad bellum

 How you fight- Jus in bello

Jus Ad Bellum

 Jus ad bellum refers to the conditions under which States may resort to war or to the use of armed
force in general.
 Jus ad bellum is the right to resort to war
 Jus (or ius) ad bellum is the title given to the branch of law that defines the legitimate reasons a
state may engage in war.
 Jus ad Bellum governs the pre-engagement conduct of states and non-state actors that are
considering whether to engage in war and armed conflict. It is concerned with the justification of
and limits to the use of force.
 The principal legal source of jus ad bellum derives from the Charter of the United Nations, which
declares-
 Article 2(4) “All members shall refrain in their international relations from the threat or
the 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”; and
 Article 51: “Nothing in the present Charter shall impair the inherent right of individual or
collective self-defense if an armed attack occurs against a Member of the United Nations.”
 The ius ad bellum (law on the use of force) or ius contra bellum (law on the prevention of war)
seeks to limit resort to force between States. Under the UN Charter, States must refrain from the
threat or use of force against the territorial integrity or political independence of another state

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 (Art. 2, para. 4). Exceptions to this principle are provided in case of self-defence or following a
decision adopted by the UN Security Council under chapter VII of the UN Charter.

Prohibiting Use of Force

 In 1919, the Covenant of the League of Nations and, in 1928, the Treaty of Paris (the Briand-
Kellogg Pact) sought to outlaw war.
 The adoption of the United Nations Charter in 1945 confirmed the trend: "The members of
the Organization shall abstain, in their international relations, from resorting to the threat or use
of force ..." However, the UN Charter upholds States' right to individual or collective self-defence in
response to aggression by another State (or group of States). The UN Security Council, acting
on the basis of Chapter VII of the Charter, may also decide to resort to the collective use of force in
response to a threat to the peace, a breach of the peace or an act of aggression.
 The legality of the use of armed force in international relations is determined solely under jus
ad bellum.
 Article 39: The Security Council shall determine the existence of any threat to the peace, breach of
the peace, or act of aggression and shall make recommendations, or decide what measures shall be
taken in accordance with Articles 41 and 42, to maintain or restore international peace and
security.
 Article 40: In order to prevent an aggravation of the situation, the Security Council may, before
making the recommendations or deciding upon the measures provided for in Article 39, call upon
the parties concerned to comply with such provisional measures as it deems necessary or
desirable. Such provisional measures shall be without prejudice to the rights, claims, or position of
the parties concerned. The Security Council shall duly take account of failure to comply with such
provisional measures.
 Article 41: The Security Council may decide what measures not involving the use of armed force
are to be employed to give effect to its decisions, and it may call upon the Members of the United
Nations to apply such measures. These may include complete or partial interruption of economic
relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the
severance of diplomatic relations.
 Article 42: Should the Security Council consider that measures provided for in Article 41 would
be inadequate or have proved to be inadequate, it may take such action by air, sea, or land forces
as may be necessary to maintain or restore international peace and security. Such action may
include demonstrations, blockade, and other operations by air, sea, or land forces of Members of
the United Nations.

Jus in Bello

 Jus in bello is the set of laws that come into effect once a war has begun.
 Its purpose is to regulate how wars are fought, without prejudice to the reasons of how or why
they had begun.
 Jus in bello is the body of legal norms governing battle and occupation - the "conduct of individuals
and units toward combatants, non-combatants, property, and the environment." Violations are
punishable under customary international law and international legal instruments.
 A party engaged in a war that could easily be defined as unjust (for example, Iraq’s aggressive
invasion of Kuwait in 1990) would still have to adhere to certain rules during the prosecution of
the war, as would the side committed to righting the initial injustice.
 This branch of law relies on-
 customary law, based on recognized practices of war,
 treaty laws, such as- the Hague law and the Geneva Law

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  Hague Regulations of 1899 and 1907, which set out the rules for conduct of
hostilities.
 Four Geneva Conventions of 1949, which protect —the sick and wounded (First);
the shipwrecked (Second); prisoners of war (Third); and civilians in the hands of an
adverse party and, to a limited extent, all civilians in the territories of the countries
in conflict (Fourth)—and
 Additional Protocols of 1977, which define key terms such as combatants, contain
detailed provisions to protect non-combatants, medical transports, and civil
defense, and prohibit practices such as indiscriminate attack.
 Jus in bello regulates the conduct of parties engaged in an armed conflict.
 IHL is synonymous with jus in bello; it seeks to minimize suffering in armed conflicts, notably by
protecting and assisting all victims of armed conflict to the greatest extent possible.
 International humanitarian law, or jus in bello, is the law that governs the way in which warfare is
conducted.
 IHL is purely humanitarian, seeking to limit the suffering caused. It is independent from questions
about the justification or reasons for war, or its prevention, covered by jus ad bellum.
 The purpose of international humanitarian law is to limit the suffering caused by war by
protecting and assisting its victims as far as possible.
 The law therefore addresses the reality of a conflict without considering the reasons for or legality
of resorting to force.
 It regulates only those aspects of the conflict which are of humanitarian concern. It is what is
known as jus in bello (law in war). Its provisions apply to the warring parties irrespective of the
reasons for the conflict and whether or not the cause upheld by either party is just.
 IHL is intended to protect victims of armed conflicts regardless of party affiliation.
 That is why jus in bello must remain independent of jus ad bellum.

DISPUTE SETTLEMENT

Law on DS

General rule is that States are free to resolve their disputes by peaceful means in any way they
decide
Article 1 (1): UN charter (Purposes of UN)
 To maintain international peace and security, and to that end: to take effective collective measures
for the prevention and removal of threats to the peace, and for the suppression of acts of
aggression or other breaches of the peace, and to bring about by peaceful means, and in
conformity with the principles of justice and international law, adjustment or settlement of
international disputes or situations which might lead to a breach of the peace;
Article 2 (3): Principles of UN
 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): Principles of UN
 All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
Article 33, UN charter : Pacific Settlement of Disputes
 Article 33
The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,

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conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.
The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such
means.

Negotiations

 Simplest And Most Utilized Form

 No third Party involvement is there
 Its active means of settlement
 Negotiation is normally the precursor to other settlement procedures as the parties decide
amongst themselves how best to resolve their differences
 Negotiations are the most satisfactory means to resolve disputes since the parties are so directly
engaged.
 Negotiation includes-
 Consultation, and
 Exchange Of Views

 In Mavrommatis Concessions Case, PCIJ observed that Negotiation is the chief method by which
states settle their disputes, whether these arise out of their state interests or in respect of claims
by their nationals, and held that ‘before a dispute can be made the subject of an action at law, its
subject-matter should have been defined by diplomatic negotiations’.
 It further observed in the international sphere and in the sense of international law, negotiation is
the legal and orderly administrative process by which governments, in the exercise of their
unquestionable powers, conduct their relations with one another and discuss, adjust and settle,
their differences.
 The court held that Article 26 (League of Nations) does not make it a condition to the jurisdiction
of the court that there should have been negotiations with a view to settling the dispute between
the two powers.
 The court held in the North Sea Continental Shelf (1969) cases that: The parties are under an
obligation to enter into negotiations with a view to arriving at an agreement, and not merely to go
through a formal process of negotiation as a sort of prior condition . . . they are under an obligation
so to conduct themselves that the negotiations are meaningful, which will not be the
case when either of them insists upon its own position without contemplating any modification of
it.
 In the Lac Lanoux Arbitration case (1957), it was stated that ‘consultations and negotiations
between the two states must be genuine, must comply with the rules of good faith and must not
be mere formalities’.
 Where the parties are under an obligation to negotiate: In Railway Traffic between Lithuania
and Poland case (PCIJ, 1931), the Permanent Court held that they are under an obligation ‘not
only to enter into negotiations but also to pursue them as far as possible with a view to
concluding agreements though they are not obliged to reach agreement.
 No general rule of international law that requires Negotiations be exhausted before settlement by
other procedures-
o Nicaragua v. US (1984)
o Aegean Sea (1978) between Greece and Turkey on Continental Shelf
o Case concerning Land and Maritime Boundary between Cameroon and Nigeria (1998)
 Negotiations referred to in various treaties, as
o An obligation of prior consultation before an action is taken
o Preliminary to resort to other means of settlement

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  Some treaties make it obligatory to carry out negotiation, consultation or exchange of views
o Agreement Governing the Activities of States on the Moon and other Celestial Bodies, 1979
o UNCLOS, 1982
o Antarctic Treaty, 1959
 An obligation to enter into Negotiations can be imposed by judicial decisions-
o North Sea Continental Shelf Cases (1969)
o Fisheries Jurisdiction case (1974)- states can mutually agree in a case
 Negotiations may be bilateral and multi-lateral
 Negotiations through permanent commissions
o Canada-US International Joint Commission (as a forum for negotiation as well as quasi-judicial
settlement of disputes)
o Also established between Finland-Norway-USSR Agreement 1959 concerning Lake Inari
 Parties free to negotiation on any term but Jus Cogens
 Meaningful Negotiations have taken place between:
o India & Pakistan in 1976 in Simla Conference
o India and Sri Lanka in 1974 in boundary dispute
o India and Bangladesh in 1977 in Farraka barrage Issue
o US and Iran in 1988 in Aerial Incident case

Inquiry and Fact Finding

 Investigation or elucidation of facts

 Impartial investigation for ascertaining the facts
 If the dispute is factual one, inquiry can resolve it
 If dispute involves legal content, inquiry can help settle the matter
 Hague Convention for Pacific Settlement of Disputes, 1907 defines Inquiry in its Article 9: Inquiry
is to facilitate a solution of disputes by elucidating the facts by means of an impartial &
conscientious investigation.
 Convention provides for International Commission of Inquiry
 The provisions relating to Inquiry in the Hague Convention 1899 (Articles 9 to 14) were expanded
in the Hague Convention of 1907 (Articles 9 to 36) to include more detailed procedural provisions.
 The incident of the destruction of the US Battleship Maine in 1898, which precipitated the
American–Spanish war, gave an impetus to the evolution of inquiry as an important ‘safety valve’
mechanism.
 In this Maine case, on February 15, 1898, the American battleship Maine exploded while sitting in
the Havana harbor, killing two officers and 250 enlisted men. Fourteen of the injured later died,
bringing the death toll to 266. A naval board of inquiry concluded that the blast was caused by
a mine placed outside the ship. Release of the board’s report led many to accuse Spain of sabotage,
helping to build public support for war.

 Inquiry was most successfully used in the Dogger Bank Incident of 1904, where Russian naval
ships fired on British fishing boats in the belief that they were hostile Japanese torpedo craft, the
Hague provisions were put into effect and the report of the international inquiry commission
contributed to a peaceful settlement of the issue. This encouraged an elaboration of the technique
by the 1907 Hague Conference and a wave of support for the procedure.
The Commission of Inquiry consisted of four naval officers of the UK, Russian, French and American
fleets, plus a fifth member chosen by the other four (in the event an Austro-Hungarian). It was required
to examine all the circumstances, particularly with regard to responsibility and blame. It was found that
there was no justification for the Russian attack. In the event, both sides accepted the report and the sum
of £65,000 was paid by Russia to the UK.

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In the Letelier and Moffit case, which arose out of assassination of Orlando Letelier and Ronni Moffit in
Washington DC in 1976, it was alleged that the assassinations were the work of Chilean intelligence
officers. While denying responsibility, Chile was prepared to make an ex-gratia payment equivalent to the
amount that would have been payable had its liability been established. A commission was established
under the Bryan treaties, a US–Chile commission, in order to determine the amount of compensation to
be paid by Chile to the US in respect of an assassination alleged to have been carried out by it. The
incident was settled on the basis of the Commission’s report.
 The United States concluded 48 bilateral treaties between 1913-1940 with provisions in each one
of them for the creation of a permanent inquiry commission. These agreements were known as the
‘Bryan Treaties’.

 International Organizations have used this inquiry and fact finding commissions to settle the
disputes.
 League of Nations used it in 7 seven cases, including:
 Aaland Islands dispute between Finland and Sweden in 1921
 Mosul case between Great Britain and Turkey
 Organs of United Nations have used it:
 SC sent fact-finding commission to Seychelles in 1981, to investigate involvement of
mercenaries in an invasion
 SG investigated the use of chemical weapons in the Gulf War between Iran and Iraq in 1984
 GA passed a Resolution on fact-finding in 1963
 GA further adopted a Declaration on Fact-finding by the UN on Dec. 9, 1991: The
Declaration defines Fact-finding as any activity designed to obtain detailed knowledge of
the relevant facts of any dispute or situation which the competent UN organs need in order
to exercise effectively their functions in relation to the maintenance of international peace
and security.
 The Declaration emphasizes that the SC, GA and the SG may employ fact-finding missions.

Mediation and Good Offices

 Third Party Intervention

 Good Offices: consists of action taken by a third party to bring about, or initiate or cause to be
continued, negotiations, without the third party actively participating in the discussion of the
dispute.
 In good offices, there is no active participation
 Mediation: is the participation of a third state or states, a disinterested individual or an organ of
UN with the disputing states in an attempt to reconcile the claims of the contending parties and to
advance proposals aimed at a compromise solution.
 In mediation, mediator takes active steps of its own.
 Mediation and Good offices are very similar, often used as synonyms.
 Hague Conventions 1899 & 1907 treat both similar
 In UN charter, no mention of good offices
 Pact of Bogota 1948, both treated as distinct
 Manila Declaration 1982, both treated as different
 Joint Mediation took place in Chacowar between Bolivia and Paraguay (1935-37); by Argentina,
Brazil, Chile, Peru, US and Uruguay
 Individual Mediation by the Pope took place in Beagle Channel Dispute between Chile and
Argentina (1984) over ownership of certain islands.
 In Falkland Islands war between UK and Argentina in 1982, UN Secretary General offered his
Good offices and US Secretary of State Alexander Haig, offered to mediate

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  Good Offices of UN in
 Indonesia (1947)
 Palestine (1966)
 Secretary General in
 Cyprus (1964)
 Kampuchea (1989)
 Afghanistan (1988)
 Other cases:
 India and Pakistan over Rann of Kutch in 1955- by UK
 India and Pakistan dispute over Kashmir in 1965- by USSR
 US and Iran over Hostage Crisis in 1980- by Algeria
 Mediation & Good Offices require consent and cooperation of both the states
 Proposals are not binding
 The process aims at persuading the parties to a dispute to reach satisfactory terms for its
termination by themselves.
 Provisions for settling the dispute are not prescribed.

Conciliation

 Conciliation combines characteristics of both- Inquiry and Mediation

 The process of conciliation involves a third-party investigation of the basis of the dispute and the
submission of a report embodying suggestions for a settlement.
 Referred to a Person or a Commission
 Involves impartial elucidation of facts & put forward proposals for settlement; having no binding
character of an award or a judgement
 Conciliation is described as ‘Intervention in the settlement of an international dispute by a body
having no political authority of its own, but enjoying the confidence of the parties to the dispute
with the task of investigating every aspect of the dispute and of proposing a solution which is not
binding on the parties’.
 The period between the world wars was the heyday for conciliation commissions.
 Conciliation commissions provided for in number of treaties-
 France- Switzerland Agreement of 1925
 Geneva General Act for the Pacific Settlement of Disputes 1928 (revised in 1949)
 Pact of Bagota 1948
 European Convention for the Peaceful Settlement of Disputes 1957
 Protocol to the Charter of Organization of African Unity 1964
 Provisions of Conciliation mentioned in-
 Vienna Convention on the Law of Treaties1969
 Succession of States in Respect of Treaties 1978
 UN Convention on the Law of the Sea 1982
 Stages of Conciliation Procedure:
1. Composition of Commission: Its either, one, or three or five (always odd in numbers)
2. Initiation of the process: either by mutual consent or ad-hoc basis (where conciliation is
compulsory)
3. Rules of Procedure and Methods of work: Commission decides its own rules of procedure
4. Duration and Termination of Conciliation: According to 1982 UNCLOS, "the conciliation
proceedings are terminated when a settlement has been reached, when the parties have accepted
or one party has rejected the recommendations of the report by written notification addressed to
the Secretary-General of the UN, or when a period of three months has expired from the date of
transmission of the report to the parties”.

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  Disputes settled by Conciliation Commission
 Chaco war (1929)
 Franco-Siamese Border case (1947: in accordance with the 1928 General Act)
 Belgian Danish dispute concerning Danish ships evacuated from Antwerp (1952)
 Disputes between France and Italy: France and Switzerland (1955)
 Norwegian-Icelandic dispute giving rise to Jay Mayen Award (1981): This is an important
case as it discussed the role of conciliation commission in dispute settlement. The
Commission, in this case, observed that although it is not bound by the rules of law, but it
may take them into account in its report. It further said that Conciliation Commission shall
not act as a court of law. Its function is to make recommendations which will lead to
acceptable and equitable solution of the problems involved. But it did take into account
state practice and decisions of the court in North Sea Continental Shelf cases.
 In 1980, UNCITRAL adopted Conciliation rules for disputes arising out of international commercial
relations.
 In 1990, G.A. adopted and circulated draft rules for Conciliation of disputes between States. These
rules deal with- initiation of conciliation proceedings; number of conciliators; appointment of
conciliators and provisions relating to conduct of conciliation proceedings.
 In 1995, UN Model Rules for the Conciliation of Disputes Between States were adopted
 In 1996, Permanent Court of Arbitration adopted Optional Rules for Conciliation, which may be
used by states making use of its facilities.
 In 2002, Optional Rules for Conciliation of Disputes Relating to Natural Resources and the
Environment adopted by the Permanent Court Of Arbitration

Arbitration

 The procedure of arbitration grew to some extent out of the processes of diplomatic settlement
 It represents an advance towards a developed international legal system.
 In its modern form, it emerged with the Jay Treaty, 1794 between Britain and America, which
provided for the establishment of mixed commissions to solve legal disputes between the parties.
 The procedure was successfully used in the Alabama Claims Arbitration, 1872 between the two
countries, which resulted in the UK having to pay compensation for the damage caused by a
Confederate warship built in the UK. This success stimulated further arbitrations, for example the
Behring Sea and British Guiana and Venezuela Boundary arbitrations at the close of the
nineteenth century
 The 1899 Hague Convention for the Pacific Settlement of Disputes included a number of
provisions on international arbitration, followed by 1907 Hague Convention on Pacific Settlement
of Disputes
 The Convention defined Arbitration as ‘the settlement of differences between states by judges of
their own choice and on the basis of respect for law’
 International arbitration is considered to be the most effective and equitable manner of dispute
settlement, where diplomacy had failed.

Meaning and Scope of Arbitration

 Arbitration is the name given to the determination of difference between states (or between a
state and a non-state entity) through a legal decision of one or more arbitrators and an umpire; or
of a tribunal other than the ICJ or other permanent tribunal
 Arbitration may be concerned with matter- such as
 boundary, or

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  May be concerned with the claims of nationals against the other state (Iran-US Claims
Tribunal created in 1981)
 Arbitration may be ad-hoc or institutionalized:
 Ad-hoc Arbitration- is for the settlement of a particular dispute
 Institutionalized arbitration- for the settlement of class of disputes e.g. ICSID

Permanent Court of Arbitration

 Permanent Court of Arbitration (PCA) was established by the 1899 Hague Convention for the
Pacific Settlement of International Disputes.
 The most concrete achievement of the 1899 Conference was the establishment of the PCA as the
first global mechanism for the settlement of disputes between states.
 Article 16 of the 1899 Convention recognized that “in questions of a legal nature, and especially in
the interpretation or application of International Conventions” arbitration is the “most effective,
and at the same time the most equitable, means of settling disputes which diplomacy has failed to
settle”.
 Further, Article 20 of the 1899 Convention formally established the PCA, stating: [w]ith the object
of facilitating an immediate recourse to arbitration for international differences which it has not
been possible to settle by diplomacy, the signatory Powers undertake to organize a Permanent
Court of Arbitration, accessible at all times and operating, unless otherwise stipulated by the
parties, in accordance with the rules of procedure inserted in the present Convention.
 The 1899 Convention was revised at the second Hague Peace Conference in 1907.
 It is not really a court since it is not composed of a fixed body of judges. It consists of a panel of
persons, nominated by the contracting states (each one nominating a maximum of four),
comprising individuals ‘of known competency in questions of international law, of the highest
moral reputation and disposed to accept the duties of an arbitrator’.
 Where contracting states wish to go to arbitration, they are entitled to choose the members of the
tribunal from the panel. Thus, it is in essence machinery facilitating the establishment of arbitral
tribunals.
 The PCA consists of an International Bureau, which acts as the registry of the Court and keeps its
records, and a Permanent Administrative Council, exercising administrative control over the
Bureau
 Between 1900 and 1932, some 20 disputes went through the PCA procedure.
 Recently the PCA has started to play an increasingly important role, so much so that an element of
‘institutionalisation’ of arbitration has been detected by some writers.
 It has provided facilities in, for example,
Eritrea–Yemen arbitration
Eritrea–Ethiopia Boundary Commission and Claims Commission
Larsen v. Hawaiian Kingdom arbitration.
Mox arbitration between the UK and Ireland
Saluka Investments v. Czech Republic.

Arbitral Tribunals

 States are not obliged to submit a dispute to arbitration, in the absence of their consent: consent
may be expressed in arbitration treaties, in which the contracting states agree to submit certain
kinds of disputes that may arise between them to arbitration, or in specific provisions of general
treaties, which provide for disputes with regard to the treaty to be submitted to arbitration
(Arbitration Agreement)

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  Arbitration tribunals may be composed in different ways, either a single arbitrator or a
collegiate body.
 In collegiate body, each party will appoint an equal number of arbitrators with the chairman or
umpire being appointed by either the parties or the arbitrators already nominated.
 Under the PCA system and in the absence of agreement to the contrary, each party selects two
arbitrators from the panel, only one of whom may be a national of the state. These arbitrators
then choose an umpire, but if they fail to do so, this task will be left to a third party, nominated by
agreement. If this also fails to produce a result, then it is by the draw of lots.

Law Applicable

 Agreements sometimes specify that the decisions should be reached in accordance with ‘law and
equity’ and this means that the general principles of justice common to legal systems should be
taken into account as well as the provisions of international law.
 General principles may also be considered
 Article 28 of the 1928 General Act for the Pacific Settlement of International Disputes, as revised
in 1949, provides that where nothing is laid down in the arbitration agreement as to the law
applicable to the merits of the case, the tribunal should apply the substantive rules as laid down in
Article 38 of the Statute of the International Court of Justice (Sources of International Law)

Cases

 The Rann of Kutch case (1971)

 the Anglo-French Continental Shelf (1978)
 The Beagle Channel case (1977)
 the Taba case (1988)
 Eritrea–Yemen arbitration
 The Eritrea–Ethiopia boundary delimitation case (2007)
 The Barbados v. Trinidad and Tobago maritime delimitation case (2006)
 Guyana v. Suriname maritime delimitation case (2007)

Comparison with ICJ

 The states themselves choose the arbitrators, lay down the applicable law and rules of
procedure, as well as set the timetable.
 The states involved may wish for the proceedings to be confidential, something which is not
achievable in the International Court with its public oral hearings and publication of written
proceedings.
 The parties pay all the costs of the arbitration, including the fees due to the registrar and
arbitrators, while in the International Court, the judges and members of the registry are paid by
the UN
 Arbitration may be the appropriate mechanism to utilise as between states and international
institutions, since only states may appear before the ICJ in contentious proceedings
 Arbitration is an extremely useful process where some technical expertise is required, or where
greater flexibility and speed than is available before the International Court is desired

Procedure for Arbitration under PCA

 Article 51 – 85 of the 1907 Hague Convention deals with Arbitration Procedure

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  The Rules deal with compromise and its settlement, number of arbitrators, and the seat and
language of arbitration
 Procedure is divided into two phases-
 Pleadings and
 Oral Discussions
 The rules further provide for majority voting, reasoned decision, effect of award, interpretation
and revision.
Mixed Arbitration

 Mixed Arbitrations are remarkable developments in international dispute settlement procedures

 Mixed Arbitrations are arbitrations taking place between States, on one hand and non-state
entities usually corporations (and sometimes individuals) on the other.
 Two most striking examples of tribunals set up for mixed arbitration are-
 International Centre for Settlement of Investment Disputes (ICSID)
 Iran-US Claims Tribunal

ICJ

 Also called the World Court, created in 1945 by the statute of ICJ
 It is the principal judicial organ of the UN as under Article 92 of the UN charter, world’s only
permanent court to settle disputes between states
 Successor to PCIJ (1922)
 Article 93, charter- provides that two classes of states may become parties to the statute of the
court, i.e.
 All members of the UN, ipso facto parties to the Statute
 Non-members, on conditions determined in case of each state by the GA on
recommendation of the SC
 Article 35, statute- court is open to
 All parties to statute
 Other states, subject to the conditions laid down by SC (Albania allowed to participate in
Corfu Channel case, Italy in Monetary Gold case, Federal Republic of Germany in North Sea
Continental Shelf cases)

Organization of the Court

 The ICJ is composed of fifteen members elected:

 Regardless of nationality,
 High moral character,
 Who either possesses the qualification required in their respective countries for
appointment to the highest judicial offices, or are juris consults of recognised
competence in international law.
 The members of the Court are elected by the General Assembly and Security Council (voting
separately) from a list of qualified persons drawn up by the national groups of the Permanent
Court of Arbitration, or by specially appointed national groups in the case of UN members that are
not represented in the PCA.
 Candidates must obtain an absolute majority of votes in both the Assembly and the Council, and no
two successful applicants may be of the same nationality.
 The elections are staggered and take place once every three years, with respect to five judges each
time. The members of the Court are elected for nine years and may be re-elected (Article 13 of
the statute)

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  There has to be representation of the main forms of civilisation and of the principal legal systems
of the world (Article 9 of the Statute): 5 western (US, France, Germany, the Netherlands, UK), 3
African, 3 Asian, 2 eastern European and 2 Latin American

 No member may exercise any political or administrative function or engage in any other
professional occupation. No member may act as agent, advocate, or counsel in any case and no
member may participate in the decision of any case in which he has previously taken part as agent,
advocate or counsel for one of the parties, or as a member of a national or international court, or
of a commission of inquiry, or in any other capacity.
 The Court elects a president and vice-president for a three-year term which can be renewed, and it
is situated at The Hague
 Chambers- Article 26 permits the creation of Chambers composed of three or more members as
the Court may determine for -
 dealing with particular categories of cases (From July 1993 to deal with Environment Law
cases) or
 Ad-hoc chambers to deal with a particular case. Or
 Chamber to hear a case by way of summary procedure

Jurisdiction of the Court

 Only states may be parties in cases before the court (Article 34, Statute). This precludes
individuals and corporations.
 The fundamental rule regarding jurisdiction is that it depends on consent; the parties must have
voluntarily conferred jurisdiction on the court
 The methods of conferring jurisdiction are set out under Article 36 of the Statute. It provides that
the jurisdiction of the court comprises all cases which the parties refer to it and all matters
specially provided for in the charter of the UN or in treaties and conventions in force.
 The jurisdiction of the International Court falls into two distinct parts: its capacity to decide
disputes between states, and its capacity to give advisory opinions when requested so to do by
particular qualified entities
 Two kinds of Jurisdiction-
 Contentious cases
 Advisory Opinion

Contentious Jurisdiction

 Contentious Jurisdiction is either-

 Voluntary under Article 36 (1); or
 Optional (Compulsory) under Article 36(2)
 When court decides case on basis of consent of disputing parties, jurisdiction of court is called
contentious jurisdiction. Consent may be given under Article 36 of the statute.
 Article 36(1)- Jurisdiction of Court comprises cases which-
(1) Parties refer to it: Ad-hoc Jurisdiction
(2) Matters provided for in the UN charter- Voluntary Obligatory
(3) By Treaties and Conventions in force- Compromissory Clause
(4) State may make unilateral declaration accepting compulsory jurisdiction of court over future
disputes- Optional Clause Jurisdiction ( provided under Article 36 (2))
 In contentious cases, the court-
 Determines its own jurisdiction
 Indicates interim/ provisional measures of protection

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  Allows intervention by 3rd state having interest of legal nature which may be affected by
decision in the case
 Judicial settlement under various treaties-
 Barcelona Traction case under Spanish- Belgian Commercial Treaty, 1927
 Fisheries Jurisdiction case under Exchange of Notes concerning fisheries between UK and
Germany
 Nicaragua v. US under Treaty of Friendship, Navigation and Commerce, 1956
 Imp. Cases:
 Corfu Channel case (UK v Albania, 1949)
 Peru v. Columbia (Asylum case)
 Right of Passage over Indian Territory (India v Portugal, 1957)
 US v Iran (Hostages case)
 Nicaragua v. US, 1984

Optional Clause Jurisdiction

 It is optional for states to make jurisdiction compulsory. The state parties may declare it at any
time that they recognize as compulsory (without special agreement) in relation to any other state
accepting same obligation, the jurisdiction of court in all legal disputes concerning-
(i) interpretation of treaty
(ii) any question of international law
(iii) existence of any fact which if established would constitute breach of international obligation
(iv) nature and extent of reparation to be made for breach of international obligation
 Reservations could be made under Article 36 (3)
(i) unconditionally
(ii) on condition of reciprocity

Advisory Jurisdiction

 Article 65 of the statute

 Not binding
 Given on legal question
 At request of GA or SC; or organs/ agencies of UN if authorized by GA on legal question
 Article 96 (1) of the UN charter empowers GA or SC to do
 Article 96 (2) of the UN charter allows organs of UN and specialized agencies to request an opinion
if they have been authorized by GA to do so and legal question arises within the scope of their
activities

Judgement of Court

 Article 59 of the statute- Decision of the court is binding between the parties and in respect of
that particular case
If judgement is not unanimous, court decides on majority
 Article 60- Judgment is final, without appeal but must state reasons and names of the judges
 Article 94(1) charter- All members of UN to comply with judgement of the court
 Article 94(2) charter- SC empowered by charter to make recommendations or decide measures to
be taken to give effect to the judgment

Dispute Settlement Under WTO

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  Dispute settlement is the central pillar of the multilateral trading system, and the WTO’s unique
contribution to the stability of the global economy. Without a means of settling disputes, the
rules-based system would be less effective because the rules could not be enforced. The system is
based on clearly-defined rules, with timetables for completing a case. First rulings are made by a
panel and endorsed (or rejected) by the WTO’s full membership. Appeals based on points of law
are possible.
 However, the point is not to pass judgement. The priority is to settle disputes, through
consultations if possible. By January 2008, only about 136 of the nearly 369 cases had reached the
full panel process. Most of the rest have either been notified as settled “out of court” or remain in a
prolonged consultation phase — some since 1995.

Principles: equitable, fast, effective, mutually acceptable

 WTO members have agreed that if they believe fellow-members are violating trade rules, they will
use the multilateral system of settling disputes instead of taking action unilaterally.
 A dispute arises when one country adopts a trade policy measure or takes some action that one or
more fellow-WTO members considers to be infringing the WTO agreements. A third group of
countries can declare that they have an interest in the case and enjoy some rights.
 A procedure for settling disputes existed under the old GATT, but it had no fixed timetables,
rulings were easier to block, and many cases dragged on for a long time inconclusively.
 The Uruguay Round agreement introduced a more structured process with more clearly defined
stages in the procedure. It introduced greater discipline for the length of time a case should take to
be settled, with flexible deadlines set in various stages of the procedure.

 The agreement emphasizes that prompt settlement is essential if the WTO is to function
effectively. It sets out in considerable detail the procedures and the timetable to be followed in
resolving disputes.
 If a case runs its full course to a first ruling, it should not normally take more than about one year
— 15 months if the case is appealed. The agreed time limits are flexible, and if the case is
considered urgent (e.g. if perishable goods are involved), it is accelerated as much as possible.
 Although much of the procedure does resemble a court or tribunal, the preferred solution is for
the countries concerned to discuss their problems and settle the dispute by themselves.
 The first stage is therefore consultations between the governments concerned, and even when
the case has progressed to other stages, consultation and mediation are still always possible.

Time-table for Dispute Settlement

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 Settling disputes is the responsibility of the Dispute Settlement Body (the General Council in
another guise), which consists of all WTO members. The Dispute Settlement Body has the sole
authority to establish “panels” of experts to consider the case, and to accept or reject the panels’
findings or the results of an appeal.
 It monitors the implementation of the rulings and recommendations, and has the power to
authorize retaliation when a country does not comply with a ruling.
 First stage: consultation (up to 60 days). Before taking any other actions the countries in
dispute have to talk to each other to see if they can settle their differences by themselves. If that
fails, they can also ask the WTO director-general to mediate or try to help in any other way.
 Second stage: the panel (up to 45 days for a panel to be appointed, plus 6 months for the
panel to conclude). If consultations fail, the complaining country can ask for a panel to be
appointed. The country “in the dock” can block the creation of a panel once, but when the Dispute
Settlement Body meets for a second time, the appointment can no longer be blocked (unless there
is a consensus against appointing the panel).
 Officially, the panel is helping the Dispute Settlement Body make rulings or recommendations. But
because the panel’s report can only be rejected by consensus in the Dispute Settlement Body, its
conclusions are difficult to overturn. The panel’s findings have to be based on the agreements
cited.
 The panel’s final report should normally be given to the parties to the dispute within six months.
In cases of urgency, including those concerning perishable goods, the deadline is shortened to
three months.
 The main stages of the working of the panel are:
 Before the first hearing: each side in the dispute presents its case in writing to the panel.
 First hearing: the complaining country (or countries), the responding country, and those that
have announced they have an interest in the dispute, make their case at the panel’s first hearing
 Rebuttals & Second Hearing: the countries involved submit written rebuttals and present oral
arguments at the panel’s second meeting.
 Experts: if one side raises scientific or other technical matters, the panel may consult experts or
appoint an expert review group to prepare an advisory report.

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  First draft: the panel submits the descriptive (factual and argument) sections of its report to the
two sides, giving them two weeks to comment. This report does not include findings and
conclusions.
 Interim report: The panel then submits an interim report, including its findings and conclusions,
to the two sides, giving them one week to ask for a review.
 Review: The period of review must not exceed two weeks. During that time, the panel may hold
additional meetings with the two sides.
 Final report: A final report is submitted to the two sides and three weeks later, it is circulated to
all WTO members. If the panel decides that the disputed trade measure does violate a WTO
agreement or an obligation, it recommends that the measure be made to conform with WTO rules.
The panel may suggest how this could be done
 The report becomes a ruling: The report becomes the Dispute Settlement Body’s ruling or
recommendation within 60 days unless a consensus rejects it. Both sides can appeal the report.
 The DSB’s jurisdiction is compulsory and exclusive with respect to the covered agreements.
 Consisting of the WTO Members, the DSB oversees the adjudication of trade disputes and the
implementation of any recommendations. It operates via reverse consensus, with the blocking of
a recommendation only possible if every member of the DSB objects.
 A panel is a quasi-judicial body responsible for initially hearing a dispute and assessing the
conformity of a Member’s challenged measure or policy with the covered agreements.
 Panels are ordinarily composed of three experts selected ad hoc by the DSB.
 A party dissatisfied with a panel decision may resort to the Appellate Body, which will rule after
60 to 90 days. The Appellate Body comprises seven members appointed for a four-year term,
renewable once, of which any three will hear an appeal. It has the power to uphold, modify or
reverse any of the legal conclusions reached by the panel, though not determinations of fact.
 So far almost 70 percent of panel reports have been appealed

Appeals

 Either side can appeal a panel’s ruling. Sometimes both sides do so. Appeals have to be based on
points of law such as legal interpretation — they cannot reexamine existing evidence or examine
new issues.
 Each appeal is heard by three members of a permanent seven-member Appellate Body set up by
the Dispute Settlement Body and broadly representing the range of WTO membership. Members
of the Appellate Body have four-year terms. They have to be individuals with recognized standing
in the field of law and international trade, not affiliated with any government.
 The appeal can uphold, modify or reverse the panel’s legal findings and conclusions. Normally
appeals should not last more than 60 days, with an absolute maximum of 90 days.
 The Dispute Settlement Body has to accept or reject the appeals report within 30 days — and
rejection is only possible by consensus.

Panels

 Panels are like tribunals. But unlike in a normal tribunal, the panelists are usually chosen in
consultation with the countries in dispute. Only if the two sides cannot agree does the WTO
director-general appoint them.
 Panels consist of three (possibly five) experts from different countries who examine the evidence
and decide who is right and who is wrong. The panel’s report is passed to the Dispute Settlement
Body, which can only reject the report by consensus.
 Panelists for each case may be chosen from an indicative list of well-qualified candidates
nominated by WTO Members, although others may be considered as well, including those who

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 have formerly served as panelist. Panelists serve in their individual capacities. They cannot
receive instructions from any government. The indicative list is maintained by the Secretariat and
periodically revised according to any modifications or additions submitted by Members.

 International Criminal Court been set up

 Nuremberg Tribunal & Tokyo Tribunal
 ICTY
 ICTR
 Hybrid Tribunals
 ICC

INTERNATIONAL CRIMINAL LAW AND INTERNATIONAL CRIMINAL COURT

Historical Development of ICL

• Setting up of International Military Tribunal at Nuremberg

• Setting up of International Military Tribunal at Tokyo
• Establishment of International Criminal Tribunal for former Yugoslavia
• Establishment of International Criminal Tribunal for Rwanda

International Crimes

• Crimes Against Humanity

• Crimes Against Peace
• War Crimes
(Concept of Universal Jurisdiction and overlapping International Criminal Jurisdiction)

Establishment of the ICC

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 • The International Criminal Court (ICC) is the first ever permanent, treaty based international
criminal court established to promote the rule of law and ensure that the gravest international
crimes do not go unpunished.
• The ICC was established by the Rome Statute of the International Criminal Court on July, 17, 1998
when 120 states participating in the “United Nations Diplomatic Conference of Plenipotentiaries
on the Establishment of the International Criminal Court” adopted the Statute.
• The Rome Statute (the Statute) sets out the Court’s jurisdiction, structure and its functions
• The 60th instrument of ratification was deposited with the Secretary General on April 11, 2002.
And the Statute was entered into force on July 1, 2002.
• Anyone who commits any of the crime under the Statute and within the jurisdiction of the court
after July 1, 2002 will be liable for prosecution by the Court (temporal jurisdcition)

Jurisdiction

The court has four kinds of jurisdiction-

• Subject-matter Jurisdiction
• Temporal Jurisdiction
• Territorial Jurisdiction
• Personal Jurisdiction

Rome Statute

The Rome Statute of the International Criminal Court consists of the Preamble and 128 Articles. The
statute is divided into 13 Parts.
• Part I – Establishment of the Court (Articles 1- 4)
• Part II – Jurisdiction, Admissibility and Applicable Law (Articles 5 – 21)
• Part III – General Principles of Criminal Law (Articles 22 – 33)
• Part IV – Composition and Administration of the Court (Articles 34 – 52)
• Part V – Investigation and Prosecution (Articles 53 – 61)
• Part VI – The Trial (Articles 62 – 76)
• Part VII – The Penalties (Articles 77 – 80)
• Part VIII – Appeal and Revision (Articles 81 – 85)
• Part IX – International Cooperation and Judicial Assistance (Articles 86 – 102)
• Part X – Enforcement (Articles 103 – 111)
• Part XI – Assembly of State Parties (Article 112)
• Part XII – Financing (Articles 113 – 118)
• Part XIII – Final Clause (Articles 119 – 128)

Establishment of the Court

Article 1: The Court

An International Criminal Court ("the Court") is hereby established. It shall be a permanent institution
and shall have the power to exercise its jurisdiction over persons for the most serious crimes of
international concern, as referred to in this Statute, and shall be complementary to national criminal
jurisdictions. The jurisdiction and functioning of the Court shall be governed by the provisions of this
Statute.

Subject-Matter Jurisdiction

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Crimes within the jurisdiction of the Court
The jurisdiction of the Court shall be limited to the most serious crimes of concern to the international
community as a whole. The Court has jurisdiction in accordance with this Statute with respect to the
following crimes:
(a) The crime of genocide;
(b) Crimes against humanity;
(c) War crimes;
(d) The crime of aggression.

Other International Crimes not Covered under the ICC

• International Drug Trafficking

• International Terrorism
• Human Trafficking
• International Money- Laundering
• Arms Trafficking
• Cyber Crimes and Cyber terrorism
• Use of Nuclear Weapons
• Willful Damage to Environment

Genocide

For the purpose of this Statute, "genocide" means any of the following acts committed with intent to
destroy, in whole or in part, a national, ethnical, racial or religious group, as such:
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.

Crimes Against Humanity

For the purpose of this Statute, "crime against humanity" means any of the following acts when
committed as part of a widespread or systematic attack directed against any civilian population, with
knowledge of the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of
international law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any other
form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic, cultural,
religious, gender as defined in paragraph 3, or other grounds that are universally recognized as
impermissible under international law, in connection with any act referred to in this paragraph or any
crime within the jurisdiction of the Court;
(i) Enforced disappearance of persons;

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(j) The crime of apartheid;
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious injury to
body or to mental or physical health

War Crimes

For the purpose of this Statute, "war crimes" means:

(a) Grave breaches of the Geneva Conventions of 12 August 1949, namely, any of the following acts
against persons or property protected under the provisions of the relevant Geneva Convention:
(i) Wilful killing;
(ii) Torture or inhuman treatment, including biological experiments;
(iii) Wilfully causing great suffering, or serious injury to body or health;
(iv) Extensive destruction and appropriation of property, not justified by military necessity and
carried out unlawfully and wantonly;
(v) Compelling a prisoner of war or other protected person to serve in the forces of a hostile
Power;
(vi) Wilfully depriving a prisoner of war or other protected person of the rights of fair and regular
trial;
(vii) Unlawful deportation or transfer or unlawful confinement;
(viii) Taking of hostages.
(b) Other serious violations of the laws and customs applicable in international armed conflict, within the
established framework of international law
(c) In the case of an armed conflict not of an international character, serious violations of article 3
common to the four Geneva Conventions of 12 August 1949, namely, any of the following acts committed
against persons taking no active part in the hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat by sickness, wounds, detention or any other cause:
(i) Violence to life and person, in particular murder of all kinds, mutilation, cruel treatment
and torture;
(ii) Committing outrages upon personal dignity, in particular humiliating and degrading
treatment;
(iii) Taking of hostages;
(iv) The passing of sentences and the carrying out of executions without previous judgement
pronounced by a regularly constituted court, affording all judicial guarantees which are
generally recognized as indispensable.
(d) Paragraph 2 (c) applies to armed conflicts not of an international character and thus does not apply to
situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or
other acts of a similar nature.
(e) Other serious violations of the laws and customs applicable in armed conflicts not of an international
character, within the established framework of international law,

Crime of Aggression

1. For the purpose of this Statute, “crime of aggression” means the planning, preparation, initiation or
execution, by a person in a position effectively to exercise control over or to direct the political or military
action of a State, of an act of aggression which, by its character, gravity and scale, constitutes a manifest
violation of the Charter of the United Nations.
2. For the purpose of paragraph 1, “act of aggression” means 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.

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Triggering Mechanism of ICC

Article 13 is very important with respect to jurisdiction of the court. It provides that the court shall
exercise jurisdiction in following three situations-
1. When a situation is referred to the Prosecutor by a State Party, in which one or more of such
crimes appears to have been committed in accordance with article 14;
2. When a situation is referred to the Prosecutor by the Security Council acting under Chapter VII
of the Charter of the United Nations in which one or more of such crimes appears to have been
committed; or
3. The Prosecutor initiates an investigation, proprio motu or otherwise under Article 15, in respect
of such a crime

Powers of Referral

• By any Member State,

• The United Nations Security Council or
• Individuals through the office of the prosecutor

Referrals

• Referrals by State parties- Republic of Uganda, the Democratic Republic of Congo, the Central
African Republic Situation
• Referrals by Security Council- Darfur (Sudan), a situation in Libyan Arab Jamahiriya
• Proprio motu by Prosecutor- Situation in Kenya
(Ivory Coast- President’s request to Prosecutor to initiate investigation)
[In selecting cases, the Prosecutor will consider gravity, admissibility and interests of justice, and then
analyze the situation.]

Security Council’s Power of Referral under Art. 13

The Security Council has the power to refer the situation to the Prosecutor under Article 13 (b), in case
of-
• threat to the peace,
• breach of the peace or
• act of aggression.
[even if there is a referral by the SC under Article 13 (b), the Court still retains power to determine
whether the case is admissible or not. ]

Security Council’s Power of Deferral under Art. 16

Article 16 of the Statute provides

‘no investigation or prosecution may be commenced or proceeded with under this statute for a period of
twelve months after the Security Council in a resolution adopted under Chapter VII of the charter of the UN,
has requested the court to that effect; that request may be renewed by the Council under the same
conditions’.

Power of Deferral

• The provision on deferral by the SC is deemed to negatively frustrate the ICC’s powers.

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 • The SC, under Article 16, may request the ICC not to investigate or proceed with prosecution when
it feels that the judicial action or threat of it might defeat council’s efforts to maintain international
peace and justice pursuant to UN charter.
• The provision only mentions deferring of investigation or prosecution on the request by the SC.
• Article 16 further implies that the SC resolution may not only prevent (or defer) the start of the
investigation but once initiated (or started) it may also stop the investigation or prosecution that
is already going on.

First Deferral by SC under Art. 16: Resolution 1422

• On July 12, 2002 the Security Council adopted resolution 1422 under Article 16 of the Rome
Statute.
• The Resolution paralyzed the International Criminal Court’s jurisdiction over US soldiers’
participating in the peacekeeping operations in Bosnia and Herzegovina.
• The original draft resolution intended to protect only the U.S. forces, but due to widespread
criticism against the U.S., the Council adopted the current resolution protecting not only the U.S
soldiers but also non-member countries of the Rome Treaty from lawsuits under the ICC statute
• Resolution 1422 exempts “current or former officials or personnel from a contributing [non-party
state] to the Rome Statute from standing trial before the ICC for a renewal one year period
beginning July 1, 2002”
• The SC seems to have abused the provision under Article 16 by adopting resolution 1422
• Article 16 does not limit the number of times a deferral request may be renewed, which could be
read literally to permit infinite renewals.
• SC Resolution was renewed on June 12, 2003 as Resolution 1487.

Admissibility

• Any issues of admissibility are intrinsically linked to jurisdiction (both overlap sometimes)
[Based on principle of complementarity]

Grounds of Admissibility

Article 17(1) of the Rome Statute 1998 states grounds of admissibility as follows:
“...the Court shall determine that a case is inadmissible where:
a) The case is being investigated or prosecuted by a State which has jurisdiction over it, unless the State is
unwilling or unable genuinely to carry out the investigation or prosecution;
b) The case has been investigated by a State which has jurisdiction over it and the State has decided not
to prosecute the person concerned, unless the decision resulted from the unwillingness or inability of the
State genuinely to prosecute.
• Further, Article 17 clarify that determinations of admissibility are to be made by the court with an
independent assessment as the sole arbiter when it says ‘’the court shall determine’’ and
• The main rule and starting place for admissibility issue is that the court must first be convinced
that it can exercise jurisdiction over the case in question as entrenched in the statute, once it
satisfy itself that it has jurisdiction over the matter, then it can also by its own motion determine
the admissibility of the case.
• Question of admissibility has to be considered both before investigation opens into a situation by
the prosecutor, before he chooses a case to prosecute and during confirmation hearing in Pre-trial
chambers the court shall consider.’’
• Where there are challenges, it has been argued that, the inadmissibility of such cases is rebuttable
and can be admissible under three conditions which are;
• ‘’the state unwillingness or unable genuinely to carry out investigation or prosecution’’,

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 • “inability of the state to prosecute’’ and
• where the person has been tried but the proceedings deemed to be for the purpose of ‘’shielding
the person concern from criminal liability.’’
• Furthermore, given the Prosecutor’s obligation under Art.18 to notify all States with jurisdiction
upon the commencement of an investigation, in order that they may seek a
• deferral of that investigation while they undertake national proceedings, in a situation
• where no such request has been forthcoming, it can be submitted that such States with jurisdiction
over the case at hand have resolved to support the admissibility of the case before the ICC
complementary jurisdiction.
Applicable Law under Article 21

1. The Statute, Elements of crime and its Rules of Procedure and Evidence
2. Applicable treaties and principles and rules of international law, including the established
principles of the international law of armed conflict
3. General principles of law derived by the court from national laws of legal systems of the
world including national laws of states that would normally exercise jurisdiction over the
crime, provided that those principles are not inconsistent with statute and with
international law and internationally recognized norms and standards.
4. The court may apply principles and rules of law as interpreted in previous decisions.
5. The application and interpretation of law must be consistent with internationally
recognized human rights and be without any adverse distinction found on grounds of
gender, age, race, colour, language, religion or belief, political or other opinion, national,
ethnic or social origin, wealth, birth or other status.

General Principles of Criminal Law

• Nullum Crimen Sine Lege

• Nulla Poena Sine Lege
• Non-retroactivity ratione personae
• Principle of Individual Criminal Responsibility
• Command Responsibility for International Crimes

Composition of the Court

Article 34 of the Statute provides for the organs of the court as under-
• The Presidency (One President, Two Vice-presidents)
• An Appeals Division, a Trial Division and a Pre-Trial Division (Total 18 judges)
• The Office of the Prosecutor
• The Registry

INTERNATIONAL CRIMINAL TRIBUNALS

Historical Evolution

• International Military Tribunal at Nuremberg: NT

• International Military Tribunal at Far-East (Tokyo): TT
• International Criminal Tribunal for former Yugoslavia: ICTY
• International Criminal Tribunal for Rwanda: ICTR

Need for International Military Tribunals- NT & TT

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 o The World War II resulted in large-scale destruction, devastation, mass murders, genocide, rape,
and innocent killings, where all rules, principles and laws of humanity were dishonored and
violated.
o The situation was as if there was no law and all chaos in the international justice system.
o The need in the real sense was to set up tribunals for prosecuting those who were liable for such
mass destruction and innocent killings, murder, mutilation and rape. It was further required to
deter future criminals and set an example so that no such holocaust happens ever again.
o No treaty law for prosecution of international crimes existed then. There was customary
international law that made war crimes punishable. A new category of international crimes called
‘crimes against humanity’ was identified, but there was no international machinery to try such
persons responsible for committing war crimes and crimes against humanity.
o Therefore the need was felt to establish international military tribunals at those places where the
destruction was at the optimum.

Nuremberg Tribunal

o It was the first time that the crimes against humanity were prosecuted at the IMT.
o On June 26, 1945 representatives of the Governments of Great Britain, France, Soviet Union and
the US, met in London to decide on a common cause of action with respect to the trial of the major
European war criminals.
o They signed the Agreement for the Prosecution and Punishment of the Major War Criminals of the
European Axis on August 8, 1945. The Agreement was accompanied by the charter of
International Military Tribunal (also called the London charter), which conferred jurisdiction on
the International Military Tribunal at Nuremberg.
o It was decided that one judge and one alternate judge would be appointed from each prosecuting
state. On the whole it had four permanent judges and four alternate judges appointed by each of
the powers and the prosecutors were also appointed by the four powers.
o The Nuremberg Tribunal had jurisdiction to try and punish those who were guilty of war crimes,
crimes against peace and crimes against humanity.
o The trial of the main accused started on November 20, 1945. The tribunal delivered its judgment
on September 30, 1946, whereby it acquitted three accused, sentenced to death twelve accused,
awarded imprisonment for life to three accused and awarded imprisonment for various terms to
four accused.
o The Nuremberg Trials prosecuted nineteen major war criminals. Although many infamous Nazi
leaders were brought to justice because of the Nuremberg Trials, several other escaped trial and
punishment by taking their own lives. Hitler, also shot himself in his underground bunker.
o The jurisdiction of the Nuremberg Tribunal, under its Statute, was restricted to only these three
categories of crimes, i.e. crimes against peace, war crimes and crimes against humanity. Almost on
the same legal principles and around the same time when the Nuremberg Tribunal was
established, another tribunal was established to try those accused of the same kind of offences in
the Far East.
o Since the crimes against humanity were not known earlier and were new, the legitimacy of
jurisdiction of the tribunal was questioned on the principle of nullum crimen sine lege and nulla
peona sine lege, i.e. there can be no crime without pre-existing law and no punishment without
law, respectively.
o The arguments regarding the illegality of tribunals were refuted in the judgment and it was
observed by the tribunal that killing, torture and humiliating innocent people are acts condemned
by the value judgments of all civilized men, and are punishable by every civilized municipal legal
system.

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Tokyo Tribunal

o The International Military Tribunal for the Far- East (Tokyo Tribunal) was set up in Japan by the
US Supreme Commander- in- Chief, General Douglas MacArthur, to try war criminals of Japan on
the same legal principles as those of German war criminals.
o The tribunal was established by the victorious states pursuant to the Potsdam Declaration of July
20, 1945. The charter of the Tokyo Tribunal was approved on January 19, 1946. The trial
commenced on June 4, 1946 in Tokyo
o The Tokyo Tribunal followed the reasoning of the Nuremberg Tribunal in applying its own
charter. The jurisdiction of the tribunal covered crimes against peace, war crimes and crimes
against humanity.
o There were eleven judges under the President-ship of Sir William Web of Australia. They were
from different states, nominated by the allied states but appointed by MacArthur.
o The trial was conducted against twenty-eight accused. Out of the remaining, two died during the
pendency of proceedings and one was discharged from proceedings due to his mental
incompetency. Out of them, seven were sentenced to death.
o The judgment was pronounced in November 1948 after conducting about 818 sessions. Former
Prime Minister Hideki Tojo and twentyfour other perpetrators were prosecuted under the
category of crimes against peace.
o The Tokyo Tribunal was selective as compared to Nuremberg Tribunal.

Critical Analysis of IMTs

• Victor’s justice
• Based on Pact of Paris- which had no sanctions, violated nulla peona sine lege
• Violated nulla crimen sine lege
• One sided trial
• Individual criminal responsibility under international law a new principle individuals then were not
subjects of international law
• No appellate process

Contributions

• Developed the principle of individual criminal responsibility

• Developed new category of international crimes- crimes against humanity
• IMTs applied rules of international law
• Later led to proposals for permanent international criminal court

ICTY

Establishment of ICTY

o • The late 1980s and early 1990s witnessed dramatic political and social change across eastern
Europe and the Soviet Union with the collapse of thevmajority of communist systems and
resurgence of nationalism.
o • In Yugoslavia – a series of economic and political crises led ultimately to the violent break up of
the country.

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 o • In the early 1990s, a brief flare up of hostilities in Slovenia was followed by brutal conflicts in
Croatia and Bosnia and Herzegovina, followed by armed conflicts in Kosovo and the Former
Yugoslav Republic of Macedonia (FYROM).
o • The United Nations took note of the situation in Sept. 1991 and urged parties to the conflict to
abide by international law. Thousands were injured and killed and hundreds of thousands were
displaced. Reports about massacres of thousands of civilians, rape and torture in detention camps,
terrible scenes from cities under siege and the suffering of hundreds of thousands expelled from
their homes, moved
o the UN in late 1992 to establish a Commission of Experts to examine the situation on the ground.
o • In its report, the Commission documented horrific crimes and provided the Secretary-General
with evidence of grave breaches of the Geneva Conventions and other violations of international
humanitarian law.
o • Its findings led the Security Council to establish an international tribunal for persons responsible
for these crimes in order to stop the violence and safeguard international peace and security.
o The International Criminal Tribunal for the Former Yugoslavia (ICTY) was set up by the United
Nations Security Council in 1993, pursuant to Resolution 808 of February 1993 and Resolution
827 of May 1993.
o This resolution contained the Statute of the ICTY which determined the Tribunal’s jurisdiction and
organisational structure, as well as the criminal procedure in general terms.
o This was the first war crimes court established by the UN and the first international war crimes
tribunal since the Nuremberg and Tokyo tribunals. The ICTY was established under Chapter VII of
the UN charter under which the Security Council has the power to take enforcement action when
there is a threat to international peace and security.
o The ethnic cleansing in the former Yugoslavia was considered to be a threat to international peace
and security and hence the Security Council took the said action.
o The ICTY was adopted by the Security Council in 1993 to prosecute persons responsible for
serious violations of International Humanitarian Law committed in the territory of former
Yugoslavia since 1991.

Jurisdiction of ICTY

ICTY has jurisdiction over following category of crimes:

• grave breaches of the Geneva Conventions of 1949
• violations of laws and customs of war;
• genocide; and
• crimes against humanity which form part of customary international law.

o The ICTY is composed of sixteen judges elected in 1993 who are expert in criminal law, human
rights, civil liberties protection and it also includes senior judicial officers. A pool of twenty-seven
ad litem judges was appointed in 2001 to reduce the backlog.
o It has the Prosecutor, who is an independent organ of the ICTY and is responsible for the
investigation and prosecution of persons responsible for these offences. There is no trial in
absentia. Penalties are limited only to imprisonment and no capital punishment can be awarded.
o The ICTY considers itself to be the first truly international tribunal, established by the UN to
determine individual criminal responsibility under the international humanitarian law.
o ICTY could actually be said to be the first International Tribunal of its kind.
o ICTY has indicted 161 individuals, proceedings against 126 have been completed, out of which 5
have been acquitted. 48 accused have been sentenced, 36 cases terminated and 11 cases
transferred to local courts.

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 o The detention facilities of the ICTY are in the Hague. The best facilities are provided in the
detention, so much so that it is known as Hague Hilton.
o The former Yugoslavian and Serbian President Slobodan Milosevic’s trial was an important trial. It
has been considered to rival that of Nuremberg in terms of history and legal significance.
o Apart from Milosevic’s trial, Tadic’s trial was epoch making in the sense that it established the
legality and legitimacy of the ICTY. The legal standing of ICTY was challenged in Tadic’s case.

Contributions of ICTY

• Trial in absentia is not possible.

• There is no possibility of imposing death penalty.
• The longest sentence imposed was for 46 years in case of Prosecutor v. Radislav Krstic (2000).
• The Victims and Witnesses Section was created to provide counseling, not only regarding the legal
rights but also to give psychological help and support and to recommend protective measures where
required. The Section has mainly dealt with female victims of rape and sexual assault.
• There is also Defense Counsel Unit and a Judicial Support Services Unit.
• It can undoubtedly be said that ICTY has in a major way contributed to the development of the
international criminal law.

ICTR

• The International Criminal Tribunal for Rwanda (ICTR) was established by the Security Council
Resolution 955 of November 8, 1994.
• It was set up in response to massive killings and atrocities in Rwanda between January 1, 1994 and
December 31, 1994.
• The victims were mainly from Tutsi ethnic group and the perpetrators from the Hutu ethnic group.
• The provisions in ICTR statute are similar to that of ICTY statute regarding the organization of tribunal,
investigation and preparation of indictment, review of indictment, rights of the accused, penalties such as
no provision for death penalty, appellate proceedings and judicial assistance.
• Like the ICTY, the ICTR has a Witnesses and Victims Support Section. The tribunal consists of fourteen
judges.
• The subject matter jurisdiction of ICTR is different from that of ICTY because the conflict was non-
international one.
• The offences covered are-
• genocide,
• crimes against humanity and
• violations of Common Article 3 of 1949 Geneva Conventions and of Additional Protocol II.

The legality of the establishment of the ICTR was challenged in case of Prosecutor v. Kanyabashi
(Jurisdiction). The challenge was rejected with ICTR ruling that the internal conflict in Rwanda was a
threat to international peace and security and UN Security Council was justified to invoke the competence
under chapter VII of UN Charter for setting up of the ICTR. The chamber reasoned that chapter VII of the
UN charter was the legitimate source of its creation and that the right to a fair trial was guaranteed
adequately by the ICTR statute and ICTR’s rules of procedure and evidence. It was held that the Security
Council’s extension of international obligations and criminal responsibilities directly to individuals in
situations of internal armed conflict was ‘an important innovation of International Law’ which was
justified only by the seriousness, enormity and severity of that conflict.

• The ICTR has indicted political, military and media leaders as well as senior governmental
administrators; thereby strengthening the recently evolved international criminal law.

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• There are 42 completed cases, 17 appeals are pending and 10 acquittals done. Two detainees died
before the judgment and three cases have been transferred to national jurisdiction.
• A former Prime Minister and two other ministers are among those in custody. One of them was the first
woman to be charged with war crimes before an international criminal court. In January 2003, the
Security Council appointed twenty-three ad litem judges to the ICTR to speed up the proceedings. The
ICTR is a step further in the growth of international criminal law.

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