INDEX

INTRODUCTION
CHAPTER ONE
INSTITUTIONS OF PUBLIC INTERNATIONAL LAW.
Specific objective.
I. Concept of Public International Law.
TO. Definition.
1. According to its recipients.
2. According to the subject.
3. According to the technique of creating standards
II. Evolution of International Law.
III. Relationship between Public International Law and law .
internal of the States.
A. Dualism.
B. Monism.
1. Internist.
2. Internationalist.
C. The coordinating or conciliatory theses.
IV. Relationship between domestic law and international law in the Mexican legal
system.

CHAPTER TWO
SOURCES OF INTERNATIONAL LAW.
Specific objective.
I. Definition.
II. The International Treaty
A. Vienna Convention on the Law of Treaties.
1. Treaty conclusion process
a. Negotiation.
b. Adoption of the text.
c. Text authentication.

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 d. Expression of consent
B. State bodies competent to conclude treaties.
C. The reservations
D. Entry into force of the treaty.
E. Observance and application of treaties.
1. Application of treaties over time.
2. Territorial application of treaties.
3. Application of successive treaties containing .
provisions relating to the same subject matter.
F. Principles governing the interpretation of treaties.
1. From the current meaning of the terms.
2. From the context.
3. In accordance with the object and purpose of the treaty.
4. In good faith.
G. Treaties and third States.
H. Amendment and modification of treaties
I. Nullity of treaties.
J. Termination of treaties.
K. Suspension of the treaty.
L. Deposit, registration and publication.
III. International custom.
IV. General principles of law.
V. Jurisprudence

CHAPTER THREE
RECEPTION OF TREATIES IN STATE REGULATIONS. Specific objective
I. Concept
II. Systems for receiving international treaties.
A. Automatic reception.
B. Special reception.
C. Self-executing and non-self-executing rules.

III. Basis of reception in Mexican law.

A. Principle of constitutional supremacy.
B. The hierarchy of treaties.

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 C. Law on the Conclusion of Treaties.

CHAPTER FOUR
SUBJECTS OF PUBLIC INTERNATIONAL LAW.
Specific objective.
I. Concept.
II. Legal personality in international law.
III. The sovereign State.
IV. Atypical subjects.
A. States with partial international legal subjectivity.
B. States with limited capacity to act.
C. Holy See.
D. Vatican City.
E. The Sovereign Order of Malta
F. The belligerents.
G. National liberation movements.
IV. International organizations.
V. The individual as an exceptional subject of Public International Law.

CHAPTER FIVE
SOVEREIGN STATE
Specific objective.
I. Concept and characteristic notes
II. Recognition of States.
A. Declarative theory.
B. Constitutive theory.
III. Recognition of governments.
TO. Doctrines relating to the recognition of governments.
1. Jefferson Doctrine.
2. Tovar Doctrine.

3. Wilson Doctrine.
4. Estrada Doctrine.
5. Diaz Ordaz Doctrine.

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IV. State competencies.
A. On its territory.
1. Acquisition of territorial sovereignty.
a. Occupation.
b. Acquisitive prescription.
c. Assignment.
d. Judicial award.
2. Land borders.
3. Airspace.
4. Marine spaces
B. About people.
1. Nationals and the action of diplomatic protection.
2. Diplomatic protection of legal entities.
3. The treatment of foreigners.
4. The Calvo clause.

CHAPTER SIX
JURISDICTIONAL IMMUNITY OF STATES
Specific objective.
I. Basis of the immunity of sovereign States.
II. Definition and doctrines relating to the jurisdictional immunity of the State.
III. International regulation on the matter.
IV. Jurisdictional immunity in Mexican practice.

CHAPTER SEVEN
INTERNATIONAL RESPONSIBILITY OF STATES
Specific objective.
I. Introduction
II. International responsibility of States.
A. objective element.
B. subjective element.
III. The fact of State.
IV. State responsibility for acts of its organs.
A. From the legislative body.
B. From the executive body.

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 C. From the judicial body.
D. Of its territorial entities.
E. Of a person or entity that is not part of the very structure of the State.
F. Of an organ placed at the disposal of a State by another State.
G. Unauthorized and ultra vires of their organs
H. Of persons acting under the direction or control of that State.
I. Of persons who de facto exercise prerogatives of that State.
J. From an insurrectional movement.
K. For damages suffered by foreigners due to insurrections or civil wars.
L. From a de facto government of a general nature.
M. Those recognized by the State as its own.
V. Violation of an international obligation.
VI. Circumstances excluding the illegality of the act.
A. Consent
B. Self-defense
C. Countermeasures.
D. Force majeure and fortuitous event.
E. Extreme danger.
F. The state of necessity
VII. State liability for acts not prohibited by law
International law.
VIII. Reparation for breach of an international obligation.
A. Restitution.
B. Compensation.
C. The satisfaction.
1. Presentation of excuses
2. Punishment of the person responsible for moral damage
3. The judicial declaration of the illegality of the act.
4. Satisfaction of a pecuniary nature.
CHAPTER EIGHT
PEACEFUL MEANS OF RESOLUTION OF DISPUTES
INTERNATIONAL LAW AND SANCTIONS OF PUBLIC INTERNATIONAL LAW.
Specific objective.
I. Introduction.

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II. Diplomatic means.
A. The negotiation.
B. Good offices and mediation.
C. The commissions of inquiry.
AND. The conciliation procedure.
III. Legal means of resolving disputes.
A. International arbitration.
B. Proceedings before the International Court of Justice.
1. Contentious procedure.
2. Advisory procedure.
IV. Sanctions of Public International Law.
A. Retortion.
B. Peaceful retaliation.
C. Legitimate defense
D. Self-protection.

CHAPTER NINE
GENERAL THEORY OF INTERNATIONAL ORGANIZATIONS.
Specific objective
I. Concept and characteristics of International Organizations.
A. Its creation
B. The members.
C. Acquisition of member status.
D. Loss or limitation of membership status
1. Withdrawal
2. Expulsion and suspension
3. Limitation of rights.
II. Classification of International Organizations.
A. General purpose organizations.
B. Special purpose organizations
III. Organic structure.
A. Deliberative body
B. Executive body
C. Administrative body.
IV. Decision-making methods

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 A. Unanimity.
B. Dissent.
C. Simple majority or qualified majority
D. Weighted vote.
E. The veto.
F. The consensus.
V. Regulatory competence of International Organizations.
TO. Internal regulations.
C. The instructions
D. Interorgan recommendations
E. The decisions
F. Intersubjective recommendations
G. Preparation of international texts.
VI. United Nations Organization.
A. Background of the UN
B. Purposes and principles.
C. Acquisition and loss of membership status.
D. Suspension of rights and privileges.
E. Operational structure.
1. General Assembly.
2. Security Council.
3. Economic and Social Council.
4. Trusteeship Council.
5. International Court of Justice.
6. Secretariat.

VII. Towards a new International Organization of Humanity

CHAPTER TEN
INTERNATIONAL ENVIRONMENTAL LAW.
Specific objective.
I. Introduction.
II. Historical development.
A. Stockholm Conference
B. Rio de Janeiro Conference.
III. Sources of International Environmental Law and its regulations.

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 A. Hard law rules
B. Soft law rules
IV. Principles of International Environmental Law.
A. Of sovereignty and responsibility.
B. Of good neighborliness and international cooperation.
C. Preventive action.
D. Precautionary.
E. Compensation for damages.
F. Of common but differentiated responsibility.
G. Principle of sustainable development.
H. Prior notification principle.
I. Principle of intergenerational equity.
J. Principle of access to information.

V. International responsibility of the State for environmental pollution.

A. Liability for unlawful acts
B. Responsibility for acts not prohibited by international law.

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 INTRODUCTION

No research in the legal field is justified if it is not

directly or indirectly inserted into the task of achieving
justice, legal security, peace, the well-being of human
beings and the harmony of humanity.

Luis Ponce de Leon Armenta

Years of experience as a student and later as a teacher have allowed me to

learn about the traditional teaching-learning system of law, as well as the
competency-centered educational model that some universities have currently
implemented. In this way, I have perceived the need to pay special attention to the
subject of Public International Law, a branch of law that per se has particular
characteristics, and that by its very nature is different from the law of the various
legal systems that govern the States that make up the international community. This
is why it is difficult for students to understand where its rules come from, how they
are determined, who the subjects of International Law are, as well as its equal
structure, due to the lack of a higher authority that places them in a relationship of
subordination as a consequence of the principle of equality of States before
International Law.

The above, together with its constant evolution due to the phenomenon of
globalization, necessarily leads us to recognize that its domain is increasingly
broader, since it governs economic, financial, scientific, technological, social,
cultural, etc. activities; contrary to what was long thought of such a discipline. Proof
of this is that until a few years ago, International Law was considered an optional
subject within the law degree curriculum.

From this perspective, I considered it necessary to develop a study guide that

facilitates the active teaching-learning process that fosters an environment in which
the teacher transforms his role from exhibitor of knowledge to facilitator of learning,
and the student from spectator of the teaching process to participatory, proactive
and critical member of the construction of his own knowledge.

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 That is why I have undertaken the task of carrying out documentary research in
order to prepare a volume whose content is integrated into a Public International
Law course that covers basic aspects of this discipline and that motivates the
student's desire to research in order to learn.

This thesis book consists of ten chapters, of which the first four address the
institutions of Public International Law, its general concepts, and the sources from
which this discipline arises, giving priority to the international treaty; also the
international legal subjectivity in relation to typical and atypical subjects, international
organizations and the individual as an exceptional subject of international
normativity.

Chapter five analyses the sovereign State as the subject par excellence of
International Law. It starts from the study of the theories of recognition of States and
governments, and studies the State powers, including the territory, land borders,
airspace, territorial sea and those exercised over people.

The jurisdictional immunity of States, their international responsibility, as well

as the peaceful means of resolving disputes and the sanctions of Public
International Law, are a core part of this work due to their importance for
international peace and security, and chapters six, seven and eight contain the
development of the aforementioned topics.

The last two chapters deal with fundamental topics of this discipline, which I
consider necessary to include: The general theory of International Organizations and
International Environmental Law.

The first of these topics is due to the participation of the aforementioned

organizations in the protection of collective interests of the international community,
which is why it is essential to know their creation, integration, structure and the
bodies in charge of carrying out the functions necessary for these organizations to
fulfill the purposes or objectives for which they were created, particularly the United
Nations Organization.

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 As regards International Environmental Law, although it is still in its formative
stage, its importance lies in the fact that the protection, preservation and
improvement of the environment for present and future generations is vital.
Furthermore, compliance with its rules is the responsibility of all States, which must
establish commitments to develop environmental policies that put a stop to the
destruction of the human environment.

This work is intended to be a text that, in a simple way, provides the student
with the fundamental tools that allow him to enter into this discipline by acquiring the
basic concepts and knowing the most important figures of International Law, so that
with exercises and practices that complement the reading and research of each of
the topics, they can develop the skills and abilities necessary for their professional
performance.

Rosa Maria Gutierrez Pepper

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 CHAPTER ONE

INSTITUTIONS OF PUBLIC
INTERNATIONAL LAW

Specific objective
Conduct a study of the different concepts that exist to define
International Law; learn about the origin and development of this legal
discipline, as well as its main exponents, the legal theses that have been
raised in relation to this branch of law and the way in which it relates to
internal law, as well as the position that the Mexican legal system holds in this
regard.

Domains
Upon completion of the study of this topic, the student will:
* Identify the concept of International Law according to the different
currents that define this discipline.
* Explains the birth of International Law as well as its first name
* Distinguishes the stages into which the evolution of International Law
is divided, and the most important writers who have contributed to its
development.
* It estimates the necessary relationships that exist between internal
law and international law.
* In the Mexican legal system, it assesses the relationship that exists
between the two spheres: internal and international.

Exercises and practices

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 Conduct research on international treaties of religious origin signed in
the 15th to 17th centuries.
According
Carry out a presentation of biographical data to its
and fundamental ideas of
recipients
Francisco de Vitoria and Hugo Grotius.
According to the subject
Carry out some readingsDefinition
on natural law and positivism in International
Law, concluding with a brief analysis.
According to the
technique of creating
standards

Emergence
Evolution
Exhibitors
<
Stages
Institutions of
\
the
Dualism
Right
International Monism
Relationship TO
Public between the Internist
<
. Internationalist
International Law and
the internal law of
the States The coordinating or conciliatory
theses

Mexican legal Article 133

system

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1. CONCEPT OF PUBLIC INTERNATIONAL LAW
Based on the particular situation that this discipline has compared to
other branches of law, we could say that Public International Law is difficult to
conceptualize or define because by its very nature this discipline has been
highly discussed because its existence as an autonomous legal system has
been repeatedly questioned.

TO. Definition.
In relation to the concept of International Law there are as many
definitions as there are authors, but following Loretta Ortiz Alf 4 in this aspect,
three types of definitions are proposed:

2. According to its recipients

It is considered the set of rules that regulate relations between States
and other international subjects. Thus, Seara Vázquez defines Public
International Law as: the set of regulations intended to regulate relations
between international subjects.

3. According to the subject

They start from the international nature of the regulated relations and
thus we have that Guggenheim defines Public International Law as: the set of
legal norms that govern international relations.

4. According to the technique of creating standards

In these definitions, the procedure for its positivization is considered

and thus we have that Suy defines Public International Law as: the set of
norms for a given moment and that without taking into account the ordered

4 ORTIZ AHLF LORETTA, Public International Law, Oxford, 3rd Edition, Mexico 2005, p. 3

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object and the obliged subject have become, as a consequence of a
procedure, international.
Considering only the subjective and formal criteria, since the material
could, according to the change of circumstances, not reflect the reality
regarding international relations, Loretta Ortiz Alhf defines Public International
Law as: "The branch of law that regulates the behavior of States and other
atypical subjects through a set of norms positivized by the peculiar normative
powers of the international community."

II. EVOLUTION OF INTERNATIONAL LAW

The background of International Law must be considered from the
emergence of the modern, autonomous State, in a relationship of equality with
other States. This phenomenon appeared after the Renaissance and not in an
earlier period, even though in ancient times some rudimentary institutions
arose in isolation that in no way formed a legal system between nations.
International Law, originally known as the law of nations, was born in
Spanish monasteries at the end of the 15th century. Francisco de Vitoria,
Francisco Suárez and Baltazar de Ayala were the religious men who made
known to the world what is now known as the Hispanic School of the Law of
Nations. To these authors we must add another important scholar: Fernando
Vázquez de Menchaca, who made important contributions to this new legal
science.
Four important events are considered to have motivated the emergence
of International Law: the fall of the Holy Roman Empire; the discovery of
America, the colonization of Africa and the emergence of the great European
States.
The name International Law by which it is known today was not
acquired until the 18th century and the name International Law is owed to the
illustrious English jurist Jeremy Bentham. However, at the beginning of the
17th century, Hugo Grotius appeared in Europe, a Dutch-born writer who is

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considered the father of International Law, since he was undoubtedly the
popularizer and systematizer of the law of nations. Grotius introduced the
theories of the Hispanic school to the world; he founded the Jus Naturalista
School of International Law and is the author of important works on this
subject, among which stands out his work entitled: "On the Law of War and
Peace" in which he made important and transcendent contributions to
international legal science.
International Law, in its formation and evolution, develops in perfectly
distinguishable stages. Cesar Sepulveda5 divides them into six:
First stage. From the Renaissance to the Peace of Westphalia
(1648).

Second stage.
From the Treaty of Westphalia to the French Revolution.

Third stage.
From the French Revolution to the Congress of Vienna.

Fourth stage.
From the Congress of Vienna to the First World War.

Fifth stage. From the end of the First World War until the beginning of the
Second World War.

Sixth stage.
Since the end of World War II until the present day.

At certain times there was a debate about what was considered

International Law and what it actually was. There were currents that declared
that this was not really an authentic right, and that it was only a catalogue of
moral norms that obliged States, or that the commitments acquired constituted
only rules of an international social nature. These concepts were successfully
refuted by renowned legal scholars, establishing that International Law has
different and specific characteristics by virtue of the legal nature of the
subjects involved, which are fundamentally States endowed with sovereignty,
and that therefore International Law cannot be developed using the same -
5 SEPULVEDA, CAESAR. International Law, 9th Edition. Porrúa Publishing House, Mexico. 1978. pp. 8-11

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procedures used in the creation of the internal laws of a country. Similarly, the
application of international legal provisions takes different forms, because
international authority bodies have a different force than the internal authority
bodies of a country: that is, legal coercion, as an instrument of force to force
subjects to comply with legal norms, which is fundamental in the internal law
of a country, does not normally exist in International Law.

III. RELATIONSHIP BETWEEN PUBLIC INTERNATIONAL LAW AND

DOMESTIC LAW OF STATES.
There are very close links between the internal law of a nation and the
rules emanating from International Law, which is why, from the 19th century
onwards, a doctrinal debate began regarding the relations between both legal
systems in order to determine the scope of application of each law. Three
basic currents with their variants were formed around this problem: dualist,
monist and coordinating theses.
A. Dualism
The theory of legal dualism establishes that Public International Law
and the internal law of States are two distinct and independent legal orders.
These legal systems are distinguished because while internal law governs the
internal relations of the State, Public International Law does so in its external
relations.
Domestic law sovereignly regulates, through the organs of the State,
the legal relations of its recipient subjects, while International Law only
regulates relations between strictly equal States. Domestic law is the
unilateral product of the State's legislative process and Public International
Law generates its norms by the common will of sovereign States.
Among the main exponents of the dualist doctrine we find Triepel and
Anzilotti6, the latter maintains that, although there may be a certain
6 This theory was originally formulated by Carl Heinrich Triepel and later considered by Dionisio Anzilotti in
his book Il Diritto Internazionale Nei Gindizi Interni.

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relationship between internal law and International Law, in the cases that he
calls "receptive or material referral" and "formal non-receptive referral" they
are two different orders. There cannot be international norms emanating from
internal norms or vice versa, nor can they influence one another in their
respective obligatory value, and therefore it is impossible for there to be a
conflict between International Law and internal Law.
Based on these considerations, International Law would require a
special act to incorporate it into domestic law.

B. Monism
Monists maintain the unity of both branches of law in a single legal
system. These theses are based on Kelsen's7 normative conception,
according to which it is the logical consequence of his "pyramidal system of
norms" which, by starting from the "original norm" as the basis of all law,
necessarily leads us to affirm the unity of the system. Thus, international law
and domestic law cannot be considered to be two different legal systems, but
rather two parts of a single general system. In turn, the monist theses derive
into two currents: the internist and the nationalist.

1. Internist
It maintains that internal law prevails over international law; it is based
on the fact that historically international law is subsequent to internal law, and
arises as a need to regulate relations between already established States and
that it is these who freely bind themselves internationally. This doctrine implies
the denial of International Law, by ignoring the basis of the binding nature of
said law.

7 Kelsen Hans, Pure Theory of Law, General Publications Directorate, Autonomous University of Mexico,
1982. pp 201 et seq.

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2. Internationalist
Also called the supremacy of international law, it maintains that there is
a single legal order in which internal law is subordinate to international law.
Thus, for Kelsen, the law of nations is hierarchically superior to internal
law by virtue of a hypothetical fundamental norm (pacta sunt sevanda), so for
this author the conflict arising between an international norm and a state norm
is simply a conflict between a higher norm and another of lower hierarchy.
Currently, the position that prevails among monists is giving priority to
international law over domestic law, without this being an obstacle for some
authors to maintain the opposite.

C. The coordinating or conciliatory theses

They are based on the unification of the different legal branches in a
single system, just like the monists, but they differ in that the relationships
between the two are of coordination and not of subordination. Among the
authors who follow this trend are Miaja de la Muela, Truyol, Luna and
Verdross.
Once the three basic currents have been generally exposed, we can
limit ourselves to the following: Positive International Law does not take sides
with the postulates of dualism or monism, but despite this, the indisputable
primacy of International Law over internal Law has been established. Suffice it
to say that to this effect, Article 27 of the Vienna Convention on the Law of
Treaties establishes that a State cannot invoke the provisions of its internal
law as justification for non-compliance with treaties, except as provided in
Article 46, which determines that it is only appropriate to declare the nullity of
a treaty contrary to internal law when the violation of a fundamental norm of
the latter is manifest and evident.
Finally, with regard to the system of incorporation of International Law
into domestic law, it is the domestic law systems themselves that ultimately
establish whether or not a special act of incorporation is required, and what
hierarchy they grant to the former.

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IV. RELATIONSHIP BETWEEN DOMESTIC LAW AND INTERNATIONAL
LAW IN THE MEXICAN LEGAL SYSTEM.
Within Mexican doctrine there is no unanimity when defining the
hierarchical level occupied by the different legal systems that form part of the
Mexican legal system. It is therefore difficult to determine where International
Law and, in particular, international treaties are located. Proof of this are the
pronouncements that the Supreme Court of Justice of the Nation has made at
different times in relation to this issue.
In order for treaties to be valid norms within our territory, it is necessary
that they be incorporated into national law through ratification or the creation
of an internal norm in which their provisions are incorporated.
In this regard, Article 133 of the Political Constitution of the United
Mexican States establishes:
Art. 133. This Constitution, the laws of the Congress of the Union that emanate from
it and all treaties that are in accordance with it, entered into and to be entered into by
the President of the Republic, with the approval of the Senate, shall be the Supreme
Law of the entire Union. The judges of each State shall abide by said constitution,
laws and treaties, notwithstanding any contrary provisions that may exist in the
Constitutions or laws of the States.

This precept enunciates the principle of constitutional supremacy which

establishes that the constitution is the supreme law, the highest norm of all
legal order and the basis of all institutions.
Constitutional supremacy means that a norm that is contrary - whether
materially or formally - to that higher norm has no possibility of existing within
that legal order.8
Starting from constitutional supremacy, we can establish that Mexican
law accepts the application of International Law within the legal system and
expressly defines in the aforementioned article 133 the requirements of
validity under which international treaties will be applicable within its territory.
In the same way, we find various provisions in which the validity of
international standards is recognized, and thus we have Article 42 of the

8 CARPIZO JORGE. The interpretation of constitutional article 133.

www.Jurídicasunam.mx/publica/librv/rev/boletin/const/.../art1.pdf June 23, 2009-06-24

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Constitution, which states that the national territory includes the waters of the
territorial seas and the internal maritime waters to the extent and within the
terms established by International Law. It is also comprised of the space
located within the national territory, with the extension and modalities in
accordance with what is established by International Law itself.9
Furthermore, Articles 89 and 7610 of the same ordinance empower the
President of the Republic and the Senate to conclude and approve,
respectively, international treaties that the Mexican State agrees to with other
States or International Organizations.
Regarding the relationship between Article 133 of our Constitution and
the monist and dualist theses, there are various positions among the authors
of both Constitutional Law and International Law, and for Professor Felipe
Tena Ramírez11, with the 1934 reform of Article 133 itself, the monist thesis
was adopted, which gives primacy to internal law over International Law,
thereby causing our legal evolution to suffer a manifest setback. For her part,
Loretta Ortiz Ahlf12 points out that the position adopted by Article 133 of the
Constitution is in fact that of dualism, since International Law requires, in
accordance with the Mexican legal system, an act of incorporation; if the
monist thesis were followed, this author adds, no act of incorporation would be
required, since both norms form part of the same legal system.
Regardless of the above, that is to say: that our legal system leans
towards the dualist doctrine, this does not prevent the State from incurring
liability in the event of a violation of an international norm by giving priority to
the constitutional norm over the international norm.
Mexican, which would be enforceable through peaceful means of conflict
resolution.

9 Article 42 of the Political Constitution of the United Mexican States

10 Arts. 89 and 76 of the Political Constitution of the United Mexican States
11 TENA RAMIREZ, FELIPE, Mexican Constitutional Law, 24th. Ed.Porrúa, Mexico, 1990. p. 549.
12 Op. Cit. Note 1, p. 8

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 CHAPTER TWO

SOURCES OF
INTERNATIONAL LAW

Specific objective
Identify the various sources that give rise to international legal standards in order
to understand and apply the most important institutions of this branch of law,
specifying the way in which they are developed and, where appropriate, generalized.
In this regard, each of them will be studied in particular and special treatment will be
given to international treaties that constitute the source generating rights and
obligations of greater importance.

Domains
Upon completion of the study of this topic, the student will:
• Specify which institutions are considered sources of international law.
• Defines an international treaty and the fundamental elements that comprise
it.
• Identify the constituent elements in the formation of a treaty.
• It recognizes the formal procedure for drafting a treaty as well as the
bodies responsible for participating in its formulation.
• It distinguishes between the acceptance and approval of an international
treaty and recognizes the differences between modification and amendment,
as well as between a reservation and a safeguard contained in said
instrument.

• Explains the forms of termination of a treaty, its nullity and the principles of
its interpretation.
• Evaluate each of the sources of International Law.

Exercises and practices

Select an international treaty and carry out a study of its elements, in
accordance with the provisions of the Vienna Convention on the Law of Treaties
(group activity).

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 Investigate the existence and application of international, general, regional or
special custom to exchange the results obtained during the class.
Research some principles of International Law that constitute sources of this
subject and present an individual summary of them.
Locate and present a criterion dictated by the International Court of Justice
and another by the International Court of Arbitration and make the relevant
comments (group activity).

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 Negotiation
Adoption of
the text.
Celebration Signa
process Text ture
authenticatio Exchange of
n. Instruments
Ratification
Consent
Acceptanc
e
Approval
Accessio
n Head of State and
Ministers of
For the execution of the acts
Bodies Foreign Affairs
competent to
For the adoption of the text of a Head of
conclude treaty diplomatic
treaties mission
For the adoption of the text before
an international conference or Accredited
before an international body. representatives
The
treaty
The
reservations
Start In time
Observance
Sources of and Application In the territory
application Successive treaties
International
Ordinary meaning of
Law the terms Context
Interpretation Beginning Conformity with
of treaties object and purpose
Good faith

Third States Amendment and

Generalities of modification Nullity
treaties Termination
Suspension
Deposit, registration and
publication

The custom

General
principles of
law

Jurisprudence

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I CONCEPT OF SOURCE OF LAW

There are two different conceptions in the doctrine of International Law

concerning the notion of "sources": the positive conception and the
objective conception. Each of them is closely related to the position
previously adopted regarding the nature of the law of nations.
In pure positivist doctrine, whose main exponent is Anzilotti, the only
source of International Law is the agreement of wills, whether in express
form (treaty) or in tacit form (custom).

For the followers of this current, the only sources of the law of nations
are those that are recognized expressly or tacitly by the States, who are
both creators and subjects of international norms.

As regards the objective conception (Scelle, Charles de Visscher,

Bourquín), it is essentially based on the distinction between creative
sources and formal sources. The former are the true sources of law; the
latter (treaties, customs) do not create law, but merely formulate it; they
are not a mode of creation, but rather a mode of verification.

In this way, the objectivist doctrine has the merit of drawing attention to
the extra-legal factors of the elaboration of law or variable material
sources (public opinion, collective conscience, solidarity, sense of
social interdependence, notion of justice, legal conviction, etc.) that are
determined by a complex set of material rights (economic needs,
political organization, etc.) of ideal conceptions (tradiction, beliefs,
national or social aspirations).

Currently, it is interesting to consider the proposals made by Luis Ponce

de León Armenta in his work Transuniversal Model of Law and the State,
based on the very concept of the source of law, which he defines in the

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following terms.

Source of Law is the historical experience, the real situation, the

form, the notation, and the cognitive reflection from which the law
arises in its various manifestations, such as doctrine, legislation,
jurisprudence, jurisdictional resolution, and formalized agreement.
10

As can be seen, this concept includes elements that had not

previously been taken into consideration when defining what a source of
law is. Among others, real situations of a social and natural nature that
lead to new reflections on the law and, as a consequence, to the
generation of legislation, jurisprudence, judicial resolutions and
formalized agreements.

Likewise, this concept also includes as a source the form or procedure

through which law is created in its various manifestations, among which
the process of scientific research of law stands out, as well as the
legislative, jurisdictional, jurisprudential and formalization of
agreements processes.

The definition also includes other normative orders other than law,
such as the moral order and custom (repeatedly confused as a formal
source), the religious order and that of social conventionalists, etc.,
which, as the author points out, were excluded.
In relation to the above and following the Trans-Universal Model of
Law and the State, we begin to classify the sources of law as real
sources and formal sources.

TO. Real sources. They are constituted by natural

social phenomena that give rise to the need to

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 create law in its various manifestations, first as new
legal reflections based on the natural social
phenomenon and then as new legislation to
address new situations that can be translated into
jurisdictional resolutions, jurisprudential relations,
and formalized agreements to govern, regulate and
harmonize human and institutional relations and the
natural environment.
B. Formal sources. They are the forms or processes
through which law is formed. They are made up of
the process of scientific research of law, the
legislative process, the jurisdictional process, the
jurisprudential process and the process of
formalization of agreements.

10 PONCE DE LEON ARMENTA, LUIS. Trans-

Universal Model of Law and State, Editorial Porrúa,
Mexico 1998, p 123.
The process of formalizing agreements is the most important formal
source of International Law since through this procedure, rules of
obligatory observance arise contained in an instrument whose name
may be a treaty, charter, statute or any other established by the parties
involved in its formulation process.

In the case of International Law, the Statute of the International Court of

Justice expressly gives us an authoritative exposition of the formal
sources by pointing out. 11

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 The Court, whose function is to determine in accordance with
International Law the disputes submitted to it must apply:

a) International conventions, whether general or

specific, that establish rules expressly
recognized by the litigating States;
b) The international summit as proof of a practice
generally accepted as law.
c) The general principles of law recognized by
civilized nations;
d) Judicial decisions and the doctrines of the
most competent publicists of the different
nations, as auxiliary means for determining the
rules of law.
11 Statute of the International Court of Justice Art. 38 pI------------------
In the list of this article we find fundamental sources and subsidiary
sources, the first being treaties and international customs and the
second being the general principles of law, jurisprudence and doctrine.

Only when the fundamental sources are not sufficient, may the judge
resort to subsidiary sources.
On the other hand, the ordinance itself adds:
This provision does not restrict the Court's power to decide a
13
dispute "ex eaquo et bono", if the parties so agree.

In order to resolve these cases in accordance with equity ex aequo et

bono, the express authorization of the parties is necessary since the
judge, in principle, can only decide in law.

1312Idem, paragraph II

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11. THE INTERNATIONAL TREATY
Treaties are par excellence the most objective manifestation of the
relationship between members of the international community. They can be
defined broadly as: Agreements between two or more sovereign States to
create, modify or extinguish a legal relationship between them.
Once the above has been pointed out, it is necessary to establish the -
importance acquired by conventional law. For this reason, in 1949 the
International Law Commission of the United Nations General Assembly
decided to codify the subject matter of treaties, concluding a project in 1966
which was adopted at the Vienna Conference on May 23, 1969.

TO. Vienna Convention on the Law of Treaties.

Given the importance of the Vienna Convention in the conclusion of
treaties, it is important to follow it in everything concerning the principles that
regulate the procedure. Thus, this convention defines international treaties as
follows: A treaty is understood to be an international agreement concluded in
writing between States and governed by Public International Law, whether it is
contained in a single instrument or in two or more related instruments and
whatever its particular name.13
Analyzing the elements of the definition, we find that three essential
requirements emerge from it.
The first is that the agreement of wills must be between States, thus
excluding those that may arise between States and International
Organizations since these are the subject of a different convention adopted in
1986. Similarly, agreements between States and individuals, or between
natural or legal persons belonging to different States, cannot be considered
treaties.
13 Vienna Convention on the Law of Treaties Art. 2nd,pI

The second requirement is that the treaty must be in writing, thus

eliminating verbal agreements.
On the other hand, it is contemplated as a third requirement that

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international treaties concluded between States and in writing must be
governed by Public International Law, in this way those regulated by the
internal law of the parties or of any other State are excluded.
It should be noted that the fact that international agreements are
concluded outside the scope of the Vienna Convention does not affect their
legal value or the application of the rules set forth in the convention itself to
which they are subject in accordance with Public International Law.

1. Treaty conclusion process

The stages in the process of concluding treaties are as follows:
a) Negotiation. This first stage aims to reach an agreement between the
parties in order to determine the clauses of the treaty. This phase is not
regulated specifically in the Vienna Convention, but traditionally the country
and place where the talks leading to the signing of a treaty are to be held
are chosen in advance. The parties appoint the corresponding
plenipotentiaries who are advised by experts and technicians in the subject
matter covered by the treaty proposal.
b) Adoption of the text. When the negotiation has concluded, the parties
adopt the content of the treaty in a definitive form. In the beginning, treaties
were adopted by unanimous agreement of the parties. Currently, bilateral
treaties, by their very nature, must necessarily be adopted unanimously,
whereas multilateral treaties are approved by a two-thirds majority of the
States present and voting, unless those States decide by the same majority
to apply a different rule.
c) Text authentication. At this stage, the final text of a treaty is
established and certified as authentic and definitive. This shall be done by
the procedure prescribed therein or agreed upon by the States participating
in its preparation, or, failing such a procedure, by signature ad referendum
or initialling by the representatives of their State on the text of the treaty or
in the final act of the conference in which the text appears.
d) Manifestation of consent. It is the action by which States are obliged

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 to comply with the treaty. The forms of manifestation of consent are:
• The signature
• The exchange of instruments constituting a treaty
• The ratification
• Acceptance
• The approval
• The adhesion

The negotiating States freely choose the specific way of expressing

consent, as provided for in Articles 12, 13, 14 and 15 of the Vienna
Convention.

B. State bodies competent to conclude treaties

For the purposes of carrying out all the acts necessary for the conclusion of
a treaty, a person is deemed to represent a State if he or she presents
appropriate full powers (express representation) or if it appears from the
practice followed by States or from other circumstances that they intended to
consider that person as a representative for the purposes (implied
representation).
Furthermore, by virtue of their functions and without having to present
full powers, the Vienna Convention recognizes that they represent their State
for the purpose of carrying out certain acts in the process of concluding a
treaty:
1. Heads of State, Heads of Government and Ministers of Foreign Affairs,
for the execution of all acts relating to the conclusion of treaties
2. Heads of diplomatic missions, for the adoption of the text of a treaty
between the accrediting State and the State to which they are
accredited.
3. Representatives accredited by States to an international conference or
to an International Organization for the adoption of the text of a treaty.
In the event that an act relating to the conclusion of a treaty is carried out
by a person who does not have an express or implicit representation of a
State or who does not have the powers conferred by the Vienna Convention, it

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will not produce legal effects unless it is subsequently confirmed by that State.

C. The reservations
When negotiating a treaty and giving its consent to an agreement, a
State may wish not to be bound by a particular provision; to do so, it makes a
reservation, in which case the reserved provisions will be left out of the treaty.
It is also common for the State to state that the treaty has a certain
interpretation for it, an act called "interpretative declaration" and in this case,
even though the essence is the same, the State is bound only within the limits
of its interpretation.
The Vienna Convention in its article 2. defines reservations as: A
unilateral declaration, whatever its wording or name, made by a State when
signing, ratifying, accepting, approving or acceding to a treaty, purporting to
exclude or modify the legal effects of certain provisions of the treaty in its
application to that State.
Reservations are currently admissible. According to the convention, the
only cases in which they are not allowed to be formulated are:
. When they are expressly prohibited by the treaty
. When they are not within those permitted by a treaty
. When the treaty is silent on the matter. In this case, reservations are only
admissible when they are not contrary to the object and purpose of the
treaty in question.
The following rules apply to the acceptance of reservations: Those
expressly authorized by the treaty do not require subsequent acceptance
unless the treaty so provides. In other cases, reservations must be accepted,
even if only implicitly.
In cases where acceptance is required, a reservation shall be deemed to
have been accepted by a State if it does not raise any objection within twelve
months of the date on which it was notified.

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D. Entry into force of the treaty and its provisional application
Once the consent of the contracting States has been expressed, a
treaty will enter into force in the manner and on the date provided therein or
agreed upon by the negotiating States.
As regards the provisional application of a treaty, nothing prevents it
from being carried out in this manner provided that the treaty itself so provides
and the negotiating States have agreed to it. However, as Loretta Ortiz Ahlf
rightly points out, it must be taken into account that although the treaty does
not bind the parties before its entry into force, they must refrain from any act
that frustrates the object and purpose of the treaty.
E. Observance and application of treaties
The basic principle on which the conclusion of treaties is based and,
consequently, their observance is contemplated in Article 26 of the Vienna
Convention, which states: “Every treaty in force is binding on the parties and
must be performed in good faith” (Pacta sunt Servanda). As a result, States
cannot invoke the provisions of their internal law as justification for non-
compliance with a treaty.
In the event that a treaty is contrary to fundamental norms of the
internal law of a State and the violations are manifest and evident, only
relative nullity of the treaty may be requested.
As regards its application, the Convention itself contemplates the
following aspects:
1. Application of treaties over time. Unless States Parties have a
different intention, treaties will generally not apply retroactively.
2. Territorial application of treaties. Treaties shall apply throughout the
territory of each State Party, unless the State Party states that they shall
apply only to part of its territory.
3. Application of successive treaties containing provisions relating to
the same subject matter. This situation arises when there are treaties
in force on the same subject matter and it is necessary to establish
hierarchical relationships between them. A first assumption occurs when

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 between the same parties a treaty specifies that it is subordinate to a
previous or subsequent one; in this case, the treaty that has primacy
according to the texts of the treaties applies. In the same sense, when
treaties on the same subject matter do not specifically regulate their
hierarchical relations, the principle applies that the later treaty repeals
the earlier one in all the provisions in which they are incompatible.
The second case contemplates the situation of treaties on the same
subject matter in which the parties are not the same. In accordance with the
Convention itself, the following rules apply to the solution of the problem:
Relations between States that are parties to both treaties shall be governed by
the later treaty in the provisions that are incompatible with the earlier treaty. As
regards the relations between a State which is a party to one treaty and
another which is a party to both treaties, they shall be governed by the treaty
to which both are parties.

F. Interpretation of treaties
In law, it has been understood that legal interpretation, in the “current
sense”, is: “A reasoning, an act of knowledge”, that is, “a spiritual operation
that aims to determine the meaning and scope of a term or a legal norm”.14
Now, when it comes to interpreting an international treaty, we must
clarify what is meant by such an act. According to Spanish professors Julio D.
González Campos and Luis I. Sánchez Podrí-guez, consists of: The
determination and precision of the meaning and scope of the conventional
provisions, in order to establish the consensus of the States expressed in the
treaty.”15
From the above, the interpretation of a treaty must be understood as the
intellectual operation that is carried out to determine its meaning; and by the
meaning of the treaty, what the text means according to the current or
ordinary meaning of the words.10
The Vienna Convention provides in its article 31 that a treaty must be
interpreted in good faith, and establishes a general rule using the literal,

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systematic and teleological criteria of interpretation, but if the meaning
reached through the application of the general rule gives us a

16
MOYANO BONILLA, CÉSAR, The interpretation of international treaties, MBA, Montevideo, 1985.
ambiguous or manifestly unreasonable interpretation, recourse must be had to
the complementary means provided for in article 32 of the convention itself,
consisting of the preparatory work and circumstances of the conclusion of the
treaty.
The preparatory work consists of documents that give an account of the
process of drafting the treaty, such as the correspondence exchanged, notes,
memoranda, minutes of the sessions, etc., while the circumstances of the
conclusion of the treaty are related to the historical framework that forms the
set of events that led the parties to conclude it.
From the analysis of section I of the aforementioned article 31, the
interpretation of a treaty must be given through four basic principles.
1. Good faith. In International Law, as in Domestic Law, good faith is
considered a general principle, which is why the interpretation of
treaties must be carried out under this principle. In this regard, the
International Law Commission established that the interpretation of
the provisions of treaties made in good faith and in accordance with
the law is essential for the rule “pacta sunt servanda” to have a true
meaning.
In the matter of treaties, Rodrigo Díaz Albonico11 warns that good
faith can be understood in two different senses: the subjective, in
which it means “among other conditions, a spirit of loyalty, of right
intention, of sincerity, which must predominate at the level of
conclusion of the international agreement”; and the objective, where
it is considered “as a criterion that can be used in the interpretation
of legal situations arising from the treaty”.
11 CORRESPONDS TO 17

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17DÍAZ ALBONICO, RODRIGO, cited by Ortiz Ahlf Loretta Public International Law 3rd Edition 2005
Oxford, Mexico, p. 19
2. Current meaning of the terms. It consists of treaties being
interpreted according to their current, usual, natural or ordinary
meaning within the context of the treaty itself, which makes it clear
that it is not done in isolation or in the abstract.
3. Context. It means that the treaty must be interpreted as a whole and
not the words interpreted in isolation. It is, therefore, about the
interpretation of a part of a treaty with reference to the content of the
whole, that is: The components and the context in which it was
given.
4. Principle of conformity with the object and purpose of the
treaty. Expressed in the sense that the interpretative function must
be appropriate to the purpose that guided the parties to contract.
This applies to the entire treaty and any of its provisions. The Vienna
Convention gives priority to logical-grammatical or textual
interpretation, admitting teleological interpretation as a complement
to this.
In addition to the principles cited, Article 33 of the Vienna Convention
establishes the criteria for interpretation in the case of treaties authenticated in
several languages, as follows:
5. When a treaty has been authenticated in two or more languages, the
text shall be equally authentic in each language, unless the treaty
provides or the parties agree that in case of inconsistency, one of the
texts shall prevail.
6. A version of the treaty in a language other than that in which the text
has been authenticated shall be considered an authentic text only if the
treaty so provides or the parties so agree.
7. The terms of the treaty shall be presumed to have the same meaning
in each authentic text.
8. Except where a particular text prevails as provided for in the first
paragraph, where a comparison of the authentic texts reveals a

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 difference of meaning which cannot be resolved by application of
articles 31 and 32 of the Convention, the meaning which best reconciles
those texts, having regard to the object and purpose of the treaty, shall
be adopted.

G. Treaties and third States

A third State is understood to be one that is not a party to the treaty
and, consequently, the treaty does not create obligations and rights for it
without its consent. However, there are certain exceptions both with regard to
the creation of rights and obligations. For the first, it is sufficient that in a treaty
the parties decide to grant rights to another subject and that the latter gives his
consent, which does not need to be expressed expressly, but is presumed as
long as there are no indications to the contrary, unless the treaty provides
otherwise. As regards the imposition of obligations, it is not enough for the
treaty to provide for it; it is also necessary for the affected third parties to give
their consent in writing.
In international practice, genuine possibilities have been accepted for
treaties that produce effects against third parties without requiring their -
consent; this is the case of what is known as “objective legal situations”,
derived, for example, from treaties of perpetual neutrality, treaties on
international waterways, and the Charter of the United Nations itself, which
produces effects against third parties, with the provisions relating to the
maintenance of international peace and security, which are obligatory even for
non-member States.

H. Amendment and modification of treaties

Like any convention or agreement, a multilateral treaty is not immutable
and is affected by the passage of time, particularly by changes in the political,
economic and social circumstances that gave rise to it. When this happens,
the treaty ceases to represent the interests of the parties and its revision

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becomes necessary. This may lead to a partial revision that takes the form of
an amendment or modification of the treaty, or a total revision that takes the
form of a succession of treaties.
The amendment is conceived as the change in one or more of the
provisions of the treaty that affects all the States parties. Modification, on the
other hand, refers to an agreement between one of the parties to modify the
treaty with respect to them exclusively.
The amendment procedure requires the agreement of the parties, and
the general rules for the conclusion of treaties shall apply as regards the
procedure.
It may happen that a State becomes a party to the treaty after the
amendment has come into force and in this case if it does not manifest at the
time of accession a different intention it will be a party to the amended treaty
except in its relations with States that have not accepted the amendment,
which will be governed by the provisions of the original treaty.
When modifying multilateral treaties, the interested parties must notify
the others of their intention to enter into the agreement and of the proposed
modification. These modifications are called Inter sé Agreement.

I. Invalidity of treaties
The international treaty is also susceptible to being voided, that is, any of
the parties may request that the legal consequences thereof be rendered void
due to a situation or circumstance that renders the treaty illegal.
The causes of nullity that the parties may assert are exhaustive; therefore,
a treaty cannot be challenged except for the reasons enumerated in the
convention and by resorting to the procedures established therein. These
causes of nullity are:
* Violation of a rule of internal law
* Restriction on the powers of the representative
* Mistake
* Pain

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 * Corruption of the representative
* Coercion of a State representative
* Coercion of a State by the threat or use of force
* Incompatibility with a norm of ius cogens

J. Termination of treaties
A validly concluded and entered into treaty may end up exempting the
parties from the obligation to continue to comply with it.
The circumstances that lead to the termination of a treaty are in the
nature of things, as occurs when compliance becomes impossible, or in the
will of one or all of the parties, who, upon appreciating objective changes in
the situation or in their expectations and interests, are inclined to abandon a
treaty that they consider unsatisfactory or that they were forced to accept in
the past, exercising a purely formal freedom.12
Termination of the treaty does not affect any rights, obligations or legal
situations created during the period of validity. Like nullity, termination only
takes place for the reasons expressly mentioned in the Convention: and they
are the following:
* By the will of the parties
* Denunciation of a treaty that does not contain provisions on this
matter
* Celebration of a subsequent treaty
* Serious breach of a treaty
* Subsequent failure to perform
* Fundamental change of circumstances
* Emergence of a new international norm of jus cogens)

18 REMIRO BROTÓNS, ANTONIO, Law of Treaties, McGraw Hill, Madrid 1997. p. 282.

K. Suspension
To suspend the application of a treaty is to provisionally and
temporarily cease its observance as a result of circumstances arising after its

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conclusion. Suspension does not imply a definitive cessation of the effects of
the treaty, but rather, when the causes that motivated the suspension
disappear, the treaty resumes its effects.
The Vienna Convention provides for the following causes of suspension
of a treaty:
* The conclusion of a subsequent treaty on the same subject matter
* Serious breach of a treaty
* Temporary inability to comply with the treaty
* Fundamental change of circumstances

L. Deposit, registration and publication of treaties

The obligation to register and publish treaties arises from the prohibition
on the use of secret treaties. This is established by the United Nations Charter
itself when it states: Every treaty and every international agreement entered
into by any of the Members of the United Nations after the coming into force of
this Charter shall be registered with the Secretariat and published by it as
soon as possible.14 This same provision only allows treaties or international
agreements registered in the manner mentioned to be invoked before the
organs of said organization.15 (13 AND 14 TO 19 AND 20)
Articles 76 and 77 of the Vienna Convention govern the performance
and function of the depositary. The first of these states that the latter must act
impartially, while the second regulates the functions that the latter must
expressly fulfil.
The functions of the depositary are of utmost importance, including
those concerning the entry into force of the treaty and reservations.
As regards the function of informing, it is obliged to inform a State intending to
accede whether its instrument will be accepted and under what conditions. On
the other hand, it has the function of managing and notifying reservations and
objections, as well as their withdrawal, in order to provide legal security to
them.
14 Charter of the United Nations Art. 102.1
15 Ibid., p.2

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 The deposit of treaties is relevant to the conclusion of multilateral
treaties since in these cases a depositary is appointed, which generally
corresponds to the host State of the International Conference where the treaty
is adopted, or the main administrative official of the International
Organizations.
The publication of treaties is of primary importance as proof of their
existence. Publicity and easy access to standards are considered an element
that favors their application, and in some cases a condition for applying them.

III. INTERNATIONAL CUSTOM.

Custom has probably been the most important source of law throughout
history, by virtue of the fact that through it various legal institutions that survive
to this day were formed. Antonio Remiro Brotóns defines it as: The norm
resulting from a general, constant, uniform and lasting practice carried out by
the subjects of International Law and carried out with the conviction of being
legally obligatory.(1615 to 21)
The definition shows that custom contains two basic elements: the
material element consisting of the process of legal creation of a spontaneous
nature, resulting from an international practice; and a psychological, spiritual
or formal element that is based on the awareness of the legal obligation of the
behaviors that comprise it.
The material element of custom is practice, and it translates into the
repetition of behaviors that may consist of actions (positive customs) and
omissions (negative customs) accepted by the subjects of International Law.
In order for this repetition of behavior to constitute the material element of
custom, it must meet the following characteristics: the practice must have
been followed by the majority of States; it must be constant and uniform, as
well as being continuous or lasting over time.
The psychological or spiritual element of custom (opinio iuris) is
essential to distinguish it from the uses and rules of courtesy or mere tradition
16 Op. Cit. Note 17, p. 318

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and from behavior based on simple considerations and opportunity. For a
customary norm to emerge, that is, for what States do to become what States
must do, it is necessary that the practice or behavior of the subjects of
International Law has been carried out with the conviction of conforming to a
legal obligation.
Even though the characteristics of contemporary international society
grant greater certainty to the rules contained in international treaties, custom
remains a fundamental source of International Law since it contributes to
making the norms of general International Law positive.

IV. GENERAL PRINCIPLES OF LAW.

The general principles of law as a source of International Law are
conceptualized as the set of rules or general propositions that lie embedded in
all the norms of law, which are recognized in the legal systems of the States,
and whose use must be considered supplementary, that is, these principles
apply only when the judge or arbitrator does not find a treaty or custom
applicable to the case. The International Court of Justice confirms this in
practice, since it has only resorted to this source in a limited and exceptional
manner, and in the absence of another standard.
The application of general principles of law may be useful in a sector of
international cooperation law, such as interstate trade agreements,
concession and economic development agreements between States and
foreign investors, and loan agreements of international organizations, among
others.

V. JURISPRUDENCE.
Jurisprudence constitutes a very important source in modern
International Law, but like the general principles of law, its character is rather
auxiliary since an international judgment cannot be based solely and

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exclusively on a jurisprudential precedent. It is defined as the set of decisions
of international courts - both those of the Permanent Court of International
Justice and those of the International Court of Justice and those of arbitration
tribunals - issued in the exercise of their contentious or advisory jurisdiction.
In International Law, the resolutions of international courts constitute
important precedents and contribute in a relevant way to the integration of this
legal science.

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 CHAPTER THREE

RECEPTION OF TREATY
IN STATE REGULATIONS

Specific objective
To know the systems of reception or incorporation of international
norms and obligations in the internal law of States, particularly with regard to
international treaties, taking into consideration the nature of the norms they
contain.
Likewise, systematize what is relevant in the Mexican legal system.

Domains
Upon completion of the study of this topic, the student will:
• Identifies the systems for receiving or incorporating international
standards and obligations.
• Distinguishes between self-executing and non-self-executing rules
incorporated in a treaty.
• Applies the principles that govern the reception of treaties in the
Mexican legal system.
• Assesses the constitutionality of inter-institutional agreements.

Exercises and practices

Conduct reviews of readings related to the principle of constitutional
supremacy contained in Article 133 of the Political Constitution of the United
Mexican States.
Consult and analyze the Law on the Conclusion of Treaties of January
1992 in order to determine the nature of interinstitutional agreements.
Prepare a report on the background of the current Article 133 of the
Political Constitution of the United Mexican States, taking as a basis the
constitutions of 1824, 1857 and 1917 with the respective reform of 1934.

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 Group dynamics for the discussion of the proposed topics in reference
to this object of study.

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 Systems for receiving Automatic reception.
international treaties Special reception.

Basis of reception Executables (self-executing)

Reception of in the Mexican legal
Rules contained in Non-executable (non self-
treaties in system
a treaty executing)
State Ordinances

Principle of
constitutional supremacy (Art. 133 constitutional)

Law on the Conclusion of Treaties.

I. CONCEPT

Considering that treaties concluded between subjects of International

Law are binding norms for those who sign them, we find ourselves in the
situation of defining the way in which States incorporate them into their
internal legal system.

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 The reception of a law is understood as: A historical process by which
a community freely accepts a foreign (that is, ancient or foreign) legal system
［ …］ a community ［ …］ assimilates the foreign law to the extent that the
pre-existing law allows, such that with such a situation the national law enters
into a process of transformation.17
International norms and obligations transcend interstate relations in
terms of their effects, requiring action by the internal organs of the State. For
this to be linked to International Law, it is necessary for it to be incorporated
or not into the internal law of the State. It is therefore necessary to specify the
mechanisms for accepting international standards and obligations provided
for in state regulations. 16-22
II. SYSTEMS FOR RECEIVING INTERNATIONAL TREATIES.
There are basically two ways of accepting or incorporating treaties into the
legal systems of States: automatic incorporation and special acceptance.
17 Institute of Legal Research. Mexican Legal Encyclopedia. Ed. Porrúa, Mexico, 2002, Volume VI Q_Z, pp.
49-51

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A. Automatic reception
Automatic acceptance does not require any special regulatory act for
incorporation. Once a treaty is internationally binding and eventually requires
publication, it is incorporated into the domestic legal system. Most countries
in Western Europe and America follow this system.

B. Special reception
Special reception requires a transformation of the treaty, through an act
of internal normative production (Law, Decree, Order). This system is
followed by Great Britain and some other Commonwealth countries, which
make the internal effectiveness of the treaties they conclude depend on its
transformation into law.
The adoption of the regime is influenced by factors of different nature,
including:
• The ideological factors linked to the assessment of the sovereignty of

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 the State and to monist or dualist postulates regarding the relations
between International Law and internal rights.
• The historical factors linked to the constitutional tradition of each
State and

• The most technically important factor is whether or not the legislative

chambers participate in the conclusion of treaties.
According to the above, the automatic reception regime is followed in
Mexico

C. Self-executing and non-self-executing rules and obligations

International norms and obligations, once incorporated into the internal
legal system of the State, are immediately applicable by the judicial and
administrative bodies to the extent that they are self-executing, that is, they
do not require regulatory development measures to this effect.

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 As long as they recognise rights in favour of individuals, in a precise
and unconditional manner, they will enjoy direct effectiveness, that is, they
can be invoked by individuals before state bodies, without prejudice to the
obligation of the bodies themselves to apply them ex officio.
The direct effectiveness of an international norm or obligation normally
operates in relations between the individual and the State (direct vertical
effectiveness), although it can also occur in relations between individuals
(direct horizontal effectiveness).
The assessment of the condition referred to is in the hands of the
implementing body. In the case of a conventional provision, the answer may
be given by:
• The treaty itself.
• The act of manifesting consent to be bound by the treaty
• The act of authorization of the legislative chambers, when they
condition the internal application to the creation of the relevant laws and

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 regulations.

Some treaties not only provide for the adoption by the parties of the
measures necessary for their implementation, but also set a time limit for
doing so.
When, on the other hand, it is a non-self-executing international norm
or obligation, its application requires the adoption of laws and other provisions
of lower rank that complement and develop them. The obligation to comply in
good faith with a rule or obligation of this nature must set in motion the
processes of internal normative production that ensure the execution of the
obligations derived from it.
In conclusion, we can point out that self-executing rules are those that
by their very nature can be applied immediately without the need for a
subsequent legislative act, that is, they are self-executing, while non-self-
executing rules require legislative action or other complementary means and,

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therefore, lack immediate enforceability, which is why they are called non-
executable.

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III. BASIS OF RECEPTION IN THE LEGAL SYSTEM
MEXICAN
The power to enter into international treaties is contemplated in the
Constitution in Article 133, granting it to the President of the Republic, with
the approval of the Senate. The powers granted to the Federal Executive are
subject to the limitations established in articles 15 and 76, section I of the
aforementioned ordinance.
Furthermore, and in relation to the distribution of powers, Article 124 of
the Constitution itself establishes that: the powers that are not expressly
granted by this Constitution to federal officials are understood to be reserved
to the States.
Applying this principle to the laws of the Congress of the Union, it only
has the power to legislate on those matters that the Constitution itself
provides for it, so that all others are subject to the legislation of each State.
Following the same principle in relation to international treaties, Miguel

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Solís Hernández points out the following18: 17-23
That the power to celebrate them and the power to approve them are attributed
respectively to the federal organs, and that there is even insistence on expressly
prohibiting the States from celebrating treaties.

That the matters on which treaties may be concluded are not enumerated, but it is
only established in a negative manner that the conclusion of treaties for the
extradition of political prisoners or for those criminals of the common order who have
had, in the country where they committed the crime, the condition of slaves, or of
agreements or treaties by virtue of which the guarantees and rights established by
the constitution itself for man and citizen are altered, is not authorized.

From the above it follows that the executive may enter into treaties on any subject
matter with the exception of not violating the articles already mentioned, since to
enumerate in a restrictive manner the subjects to which they may refer would be to
attempt to diminish the sovereignty of the country in relation to other nations.

On the other hand, it must be noted that the act of incorporating the
treaty into our legal system does not deprive it of its own nature, which is why
treaties should not be confused with federal laws or national laws, even if
18 Solís Hernández Miguel, Treaties and the Constitution, professional thesis, Escuela Libre de Derecho,
Mexico, 1959, cited by Loretta Ortiz Half, Public International Law, third edition, Oxford publishing house,
Mexico 2004, p. 38

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they are applied throughout the territory. The above is essential to determine
the criteria for interpretation and application of the treaties.
There are two procedures for linking internal regulations and
international law: the incorporation procedure and the referral procedure
(“abide by what another has said”).
The procedure for incorporating international standards into domestic
law consists of meeting certain requirements for international law to be an
integral part of domestic law, such as the participation of two State bodies,
that is, the head of State and the Legislative Branch.
The referral procedure consists of the Constitution itself referring to
International Law. Articles 42 and 89 of our fundamental law are examples of
this.
Article 42. The national territory includes:
VI. The space located on the national territory with the extension and modalities
established by International Law itself

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 Article 89. The powers and obligations of the president are the following:
X. Conduct foreign policy and conclude international treaties, as well as terminate,
denounce, suspend, modify, amend, withdraw reservations and make interpretative
declarations on them, submitting them to the Senate for approval. In conducting
such policy, the head of the Executive Branch shall observe the following normative
principles: self-determination of peoples; non-intervention; peaceful settlement of
disputes; prohibition of the threat or use of force in international relations; legal
equality of States; international cooperation for development; and the struggle for
international peace and security.

TO. The hierarchy of treaties in Mexican law.

Legal systems are formed by a set of rules whose validity is referred to
the basic fundamental rule, such is the case of the Mexican legal system,
whose basis of validity is contained in article 133 of the Political Constitution
of the United Mexican States, under the following text:

Article 133. This Constitution, the laws of the Congress of the Union that emanate
from it and all Treaties that are in accordance with it, entered into and to be entered
into by the President of the Republic, with the approval of the Senate, shall be the
Supreme Law of the entire Union. The judges of each State shall abide by said
Constitution, laws and treaties, notwithstanding any contrary provisions that may

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 exist in the Constitutions or laws of the States.

In our country, the relationship between national law and the

international legal order has been studied as a matter of hierarchy, where it is
necessary to establish the hierarchical position that International Law
occupies within our internal order, in order to understand the cases in which it
should be applied.
Within Mexican doctrine we find different interpretations of the
hierarchical order existing in our normative system, and thus we have various
authors who refer to it:
Mario of the Cave. It is considered that the Mexican legal system is
classified into: Political Constitution, constitutional laws and international
treaties, ordinary federal law and local19 law. (18-24)
From
According to the above, the Constitution is ranked first, followed by
19 MARIO DE LA CAVE, Constitutional law. Lex, Mexico, 1965, pp. 46-49

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international treaties and constitutional laws, which have the same hierarchy.
Regarding the concept of constitutional laws, this author considers that Article
133, when stating that the laws emanating from Congress will be the
Supreme Law of the entire Union, refers to those laws that regulate and
develop some provision contained in the Constitution itself, which are
superior to ordinary federal and local law. Thirdly, there is federal and local
law, between which there is no pre-eminence, since they are different
spheres of competence, differentiated by the Constitution; this is confirmed by
the fact that the federal form of government guarantees the autonomy of the
federative entities with regard to their internal regime.
Felipe Tena Ramirez. It points out that the text of article 133 is
imprecise since the precept refers to "constitutional laws and treaties" and
therefore when the laws and treaties are in accordance with the Constitution
they will prevail over the unconstitutional laws of the States 20; (19-25) Such

20 Op. Cit. note 8, p. 545

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superiority derives from its conformity with the Constitution, but without
establishing a precise criterion in the case that both norms are constitutional
and concludes by pointing out: Article 133 is an obscure, incongruous and
dislocating precept of our system and enshrines a subsidiary defense of the
Constitution by imposing on local judges the obligation not to apply local laws
that are in conflict with the federal Constitution.
Jorge Carpizo and Elisur Arteaga argue that treaties have the
hierarchy of the laws of the Congress of the Union. The first specifies that
treaties are hierarchically superior to ordinary laws but of equal hierarchy to
constitutional laws.
Fernando Alejandro Vázquez Pando and Loretta Ortiz Ahlf
consider that by virtue of the federalism adopted by the current Constitution,
three different legal strata can be distinguished in the Mexican State: what
could be called national, federal and local21. (20-26)

21 Op. Cit. note 1, pp. 68-70

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 These authors point out the following: that if the triplicity of the legal
strata that make up the system is clear, the more difficult task is to locate the
regulations that form each stratum, except for the most obvious cases such
as the Constitution itself, federal laws and local laws. In this sense, they place
the treaties in the national stratum since they are signed by the President of
the Republic acting as head of State, that is, as representative of the United
Mexican States abroad. The authors point out that such regulations may refer
to matters that, from the point of view of the distribution of powers, are of a
local or federal nature, and their internal validity is subordinated exclusively to
the Constitution, which leads to the conclusion that these are national
regulations and not federal and local ones. They also clarify that treaties are
not laws in the strict sense and that when the Constitution qualifies them in
Article 133 as part of the supreme law, it does not give the term law the
specific technical connotation of a general order derived from the legislative
process, since evidently the Constitution itself is not a law in that sense, but

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rather merely seeks to establish a hierarchical principle according to which
treaties and federal laws that are in accordance with it are the superior
hierarchical regulations, deriving such superiority from the congruence with
the Constitution itself.
Within the same considerations, they affirm that treaties may refer to
matters that, from the point of view of the internal distribution of legislative
powers, fall within the jurisdiction of the Congress of the Union, and thus the
assumption may also arise that the provisions of the treaty are not compatible
with those of a federal law. The hierarchical relationship between federal law
and treaties, in the absence of a specific criterion in article 133, can be
resolved by resorting to an analysis of the areas of validity of the respective
norms, according to which the provisions of the treaty are presented as
special norms applicable to certain cases or to certain subjects (nationals or
residents of the States party), while internal laws are presented as general
regulations applicable to all cases not regulated by specific regulations.

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 They also point out that it would not be possible to resort to the
principle that the subsequent rule repeals the previous one, since the same
procedure must be followed in the modification and repeal of federal laws as
for their approval (article 72 section f of the Constitution), and it is obvious
that a treaty cannot modify or repeal a federal law, since the celebration of
this does not follow the legislative procedure, but the special procedure
consisting of the celebration by the President of the Republic with the
approval of the Senate.
On the other hand, they emphasize that although the Constitution does
not expressly regulate the matter, it is obvious that a law of the Congress of
the Union cannot modify or repeal a treaty, since these are a diverse legal
source that escapes both the competence of the general Congress and that
of the legislatures of the states of the federation.
They conclude by mentioning that the only solution criterion
established by Article 133 consists of making the rule that is in accordance

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with the Constitution itself prevail. However, these may be rules of such a
nature that both are compatible with the same, in which case the criterion of
article 133 is not sufficient to resolve the problem, showing that in this case
the fundamental law seems to have a gap since it subordinates both federal
laws and treaties directly to the Constitution without establishing a
hierarchical relationship between both legal systems.
The Supreme Court of Justice of the Nation has ruled on this matter on
several occasions:
• Supremacy of domestic law over international law.

The supremacy of internal law (Constitution) over International Law (treaty) has
been confirmed by the Supreme Court of Justice of the Nation. In the event of a
conflict between the Constitution and the treaty, the former takes precedence.
Scholars of our Constitution invariably maintain that the Supreme Law itself does not
determine the subject matter of treaties and conventions entered into by the
Government of the Republic; but they also agree that the phrase 'and all treaties that
are in accordance with it' refers to the fact that the Conventions and Treaties are not
in conflict with the precepts of the same fundamental Law, that is, that 'they are in
accordance with it'. It is therefore evident that any treaty or agreement entered into

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 by the President of the Republic, even if approved by the Senate, but which
contradicts or is in opposition to the precepts of the Constitution, in the points or acts
in which this occurs, should not have legal22 effectiveness. (21-27)

• Legal equality of a treaty and a federal law

"INTERNATIONAL TREATIES AND LAWS OF THE CONGRESS OF THE UNION

EMANATED FROM THE FEDERAL CONSTITUTION. THEIR CONSTITUTIONAL
RANK IS OF EQUAL HIERARCHY. Article 133 of the Constitution does not
establish any preference between the laws of the Congress of the Union that
emanate from it and the treaties that are in accordance with it, entered into and to
be entered into by the President of the Republic, with the approval of the Senate,
since the aforementioned legal device does not advocate the thesis of the
supremacy of International Law over internal law, but rather adopts the rule that
International Law is part of national law, since although it recognizes the binding
force of treaties, it does not give them a higher rank than the laws of the Congress
of the Union emanating from that Constitution, but rather the rank that it confers on
them is the same23. (22-28)

"FEDERAL LAWS AND INTERNATIONAL TREATIES HAVE THE SAME

NORMATIVE HIERARCHY. In accordance with Article 133 of the Constitution, both
22 Amparo in review 7798/47, t. XCVI.
23 Amparo in review 256/81. CH Boehringer Son. July 9, 1981. Unanimous vote. Speaker: David Góngora
Pimentel. Secretary: Guillermo Antonio Muñoz Jiménez. Documentation, Information and Analysis Center.
Research and Analysis Services Directorate. Deputy Directorate of Foreign Policy

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 the laws that emanate from it, as well as the international treaties, signed by the
Federal Executive, approved by the Senate of the Republic and that are in
accordance with it, both occupy the rank immediately below the Constitution in the
hierarchy of norms in the Mexican legal system. However, having the same
hierarchy, the international treaty cannot be a criterion to determine the
constitutionality of a law or vice versa. Therefore, the Law on Chambers of
Commerce and Industry cannot be considered unconstitutional for contradicting the
provisions of an international24 treaty." (23-29)

• Supremacy of the treaty over a federal law

"INTERNATIONAL TREATIES. THEY ARE LOCATED HIERARCHICALLY ABOVE

THE FEDERAL LAWS AND IN A SECOND PLANE WITH RESPECT TO THE
FEDERAL CONSTITUTION. The question regarding the hierarchy of norms in our
law has been persistently formulated in doctrine. There is unanimity regarding the
Federal Constitution as the fundamental norm and that although in principle the
expression '... will be the Supreme Law of the entire Union ...' seems to indicate that
not only the Magna Carta is supreme, the objection is overcome by the fact that the
laws must emanate from the Constitution and be approved by a constituted body,
such as the Congress of the Union and that the treaties must be in accordance with
the Law.

24 Amparo in review 206/91. Manuel Garcia Martinez. June 30, 1992. Majority of fifteen votes. Speaker:
Victoria Adato Green. Secretary: Sergio Pallares Lara. November 17, 1992. Documentation, Information and
Analysis Center

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Fundamental, which clearly indicates that only the Constitution is the Supreme Law.
The problem regarding the hierarchy of the other rules of the system has found
different solutions in jurisprudence and doctrine, among which the following stand
out: supremacy of federal law over local law and the same hierarchy of the two, in
their plain and simple variants, and with the existence of 'constitutional laws', and
that the supreme law will be the one that is qualified as constitutional. However, this
Supreme Court of Justice considers that international treaties are in the background,
immediately below the Fundamental Law and above federal and local law. This
interpretation of Article 133 of the Constitution stems from the fact that these
international commitments are assumed by the Mexican State as a whole and bind
all its authorities before the international community; this explains why the
Constituent Assembly has empowered the President of the Republic to sign
international treaties in his capacity as head of State and, in the same way, the
Senate intervenes as a representative of the will of the federative entities and,
through its ratification, binds its authorities. Another important aspect to consider
regarding this hierarchy of treaties is that in this matter there is no limitation of
jurisdiction between the Federation and the federative entities, that is, the federal or
local jurisdiction of the content of the treaty is not taken into account, but rather by
express mandate of Article 133 itself, the President of the Republic and the Senate
can oblige the Mexican State in any matter, regardless of whether for other
purposes this is the jurisdiction of the federative entities. As a consequence of the
above, the interpretation of article 133 leads to considering federal and local law in
third place in the same hierarchy by virtue of the provisions of article 124 of the
Fundamental Law, which orders that "The powers that are not expressly granted by
this Constitution to federal officials are understood to be reserved to the States." It

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should not be overlooked that in its previous formation, this Supreme Court had
adopted a different position in thesis P. C/92, published in the Official Gazette of the
Judicial Weekly of the Federation, Number 60, corresponding to December 1992,
page 27, heading: 'FEDERAL LAWS AND INTERNATIONAL TREATIES. THEY
HAVE THE SAME NORMATIVE HIERARCHY'; however, this Full Court considers it
appropriate to abandon such criterion and adopt what it considers to be the superior
hierarchy of treaties even in relation to federal law. Therefore, since the bodies that
create international treaties belong to the federal order and the fact that our country,
in order to act at an international level, needs to present itself as a State, it is clear
that treaties cannot but belong to the federal order, in this way, the hierarchical level
they occupy is located below the Constitution.

B.On June 1, 2011, a series of constitutional

reforms were published in the Official Gazette of the
Federation, which established the following
fundamental aspects to be considered: the first
concerning modifications in the titles of the first
chapter; human rights and their guarantees and the
second related to the reform of eleven articles

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where the establishment of equal hierarchy
between the Magna Carta and international human
rights instruments stands out.
The above recognizes that the international treaties
signed and ratified by our country on human rights
have the same hierarchy as the Constitution, a rank
that places them with the latter at the top of the
legal system. It is worth noting that the second
paragraph of the first article states that any rule
relating to human rights must be interpreted in
accordance with the Constitution and International
Treaties, placing them in evident superiority to
other regulations.

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 C.Law on the Conclusion of Treaties
The Law on the Conclusion of Treaties was published in the Official
Journal of the Federation on January 2, 1992. This law has generated great
controversy, despite its limited content and short existence.
The above is based on the fact that the Political Constitution of the
United Mexican States only regulates international agreements called
international treaties. And this law, in addition to regulating matters relating to
treaties, creates the legal figure of inter-institutional agreements that give rise
to the aforementioned controversies.
This law defines a series of concepts and merely repeats basic
principles already outlined in the Constitution and the Vienna Convention
without providing anything new regarding the conclusion of international
treaties. A different issue is the one regarding inter-institutional agreements
that merit a detailed analysis of their legal nature and controversial
constitutionality.

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 D. Interinstitutional agreements.
They are contained in the Law on the Conclusion of Treaties and are
defined as follows:
Article 2. For the purposes of this Law, the following definitions shall apply:
II.- “Interinstitutional Agreement”: the agreement governed by Public International
Law, entered into in writing between any agency or decentralized body of the
Federal, State or Municipal Public Administration and one or more foreign
government bodies or international organizations, whatever their name, whether or
not it derives from a previously approved treaty.
The material scope of inter-institutional agreements must be limited exclusively to
the powers of the decentralized agencies and bodies of the aforementioned levels of
government that sign them.

In order to carry out an analysis of the aforementioned inter-

institutional agreements, I will take the position previously supported in an
article called "The agreement of wills in the Federal 25 Pact" (24-30) by myself
and Rodolfo Villalobos del Rosal. Work prepared jointly with other authors
coordinated by Dr. María Leoba Castañeda Rivas.

25 Legal Readings Magazine No. 9, 2009, pp. 212-215.

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 Despite the express absolute prohibition on States, contemplated in Section I of
Article 117, in relation to entering into alliances, treaties or coalitions with foreign
powers, there is the possibility that the organs of the federative entities enter into
agreements with their counterparts in other countries, always within the scope of
their competence, seeking to justify the figure in:

That interinstitutional agreements do not create international commitments

towards other States or members of the international community ［…］26. (25-31)

In order to analyse the figure of “Interinstitutional Agreements” it is necessary to

establish what said figure consists of. According to article 2, section II, of the Law on
the Conclusion of Treaties, they are defined as:

The agreement governed by Public International Law, entered into in writing

between any department or decentralized agency of the Federal, State or
Municipal Public Administration and one or more foreign government bodies or
international organizations, whatever their name, whether or not it derives from a
previously approved treaty.

For study purposes, it is useful to return to the definition of an international treaty

given by the Vienna Convention:

［ … ］ An international agreement concluded in writing between States and

governed by international law, whether embodied in a single instrument or in two
26 Op. Cit, Note 1, p. 48.

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 or more related instruments and whatever its particular designation.

From a simple reading of both definitions we can infer that both figures enjoy the
same basic characteristics: both are agreements of wills; the parties are subjects of
different national rights, they are recorded in writing, and they are governed by rules
of International Law regardless of their particular name.

Given the above, we can validly conclude that the interinstitutional agreement fits
perfectly into the definition of an international treaty made by the Vienna Convention,
and therefore, being an international treaty, it is a clear violation of the prohibition
contained in section I of article 117 of the Constitution.

Now, in the opinion of the Senate regarding the approval of the Law on the
conclusion of treaties, it was noted:

［ … ］ Interinstitutional agreements have a legal nature distinct from that of

treaties. By virtue of its subscription, the commitments agreed upon are not
assumed by the Mexican State as such, but rather constitute commitments for
the federal, state or municipal decentralized agencies or organizations that
subscribe to it.27 (2632)

Seeking to justify the figure in order not to fall into the unconstitutionality indicated.
However, the above is wrong. First of all, if interinstitutional agreements do not have
the nature of an international treaty, then what nature does it have? It is obvious that
27 Op Cit. note 1, p. 45

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they are not mere contracts, since these are regulated by the law of the place where
they are entered into, and in the case of inter-institutional agreements, as the law
itself indicates, the regulation is Public International Law.

Public International Law only regulates two agreements that are recorded in writing:
The international treaty and the concordat. The concordat is a form of international
treaty entered into by atypical subjects of international law of a religious nature, such
as the Holy See and the Sovereign Order of Malta, and only in humanitarian,
scientific and artistic matters.

Thus, it is clear that the interinstitutional agreement does not have the nature of a
concordat either. Therefore, even if it is intended to be pointed out that they do not
have the nature of a treaty, it is not possible to give them any other nature and their
characteristics fit into those of this source of International Law.

Now, by establishing the law itself that the agreements will be governed by
International Law, its unconstitutionality is made evident: International legal
subjectivity falls on national States, as typical subjects, and on a series of atypical
subjects that enjoy personality because the States themselves recognize them as
part of the international community, since any entity or individual that is a direct
recipient of a norm of said order is considered a subject of International Law.
However, it has already been pointed out that the federative entities lack external
sovereignty; international representation was granted, when the federal pact was
formed, to the new entity called the federal State, and even more: the constitution
itself prohibits them from entering into treaties, and with it legal personality in the

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international sphere. In this way, if the federative entity cannot enter into treaties,
even less can any organ or organization that is part of it, including the municipality,
which forms part of it and serves as the basis for its political division. It cannot be
considered valid to say that the agreement is concluded with organs or agencies of
a foreign State and not with the State itself, because, by following the rules of Public
International Law – as can be seen from the definition provided by the law – these
organs are not subjects of International Law and therefore cannot enter into
international treaties.

In another order of ideas, this figure causes, in addition to the problem of personality
for its celebration, the problem of responsibility, because, regardless of the
unconstitutionality of the figure, these agreements are celebrated and their non-
compliance results in international responsibility being established.

Now, does this responsibility fall on the offending body? Obviously, the answer is
negative, since these bodies, lacking international subjectivity, cannot be held
responsible, and do not have the authority to respond for it in the event of violation
or non-compliance with the inter-institutional agreement. Responsibility falls on the
entity subject to International Law, that is, the Mexican State, despite what was
stated by the Senate in the opinion approving the treaty law.

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68
 CHAPTER FOUR

SUBJECTS OF PUBLIC INTERNATIONAL

LAW

Specific objective.
Carry out the study of each of the entities that are considered subjects
of International Law and whose behavior directly regulates the international
legal order.
The particular characteristics of the subjects called by the doctrine
typical and atypical subjects will be analyzed, as well as the International
Organizations and the individual as an exceptional subject of International
Law.

DOMAINS.
Upon completion of this chapter, the student will:
• Distinguishes between legal subjectivity and legal capacity to act in the
international sphere.
• Know the elements that make up the typical subject.
• Explain the differences that exist between a typical and an atypical
subject.
• Identify the International Organization and the way of relating
with the States.
• Assesses the circumstances in which the individual may be subject
exceptional in international law.

Exercises and practices

• Prepare monographs on atypical subjects of International Law.
• Create an International Organization with objectives, structures, and
functions of its organs (group activity).

• Conduct an exercise to file a complaint with the Inter-American

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Commission on Human Rights for a State's violation of the fundamental
rights of an individual.

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 Sovereign States

Typical
subjects

States with partial

international legal
subjectivity

States with limited

capacity to act

Holy See
Subjects of Public Atypical
International Law subjects
Vatican City

Sovereign Order of Malta

The belligerents
The insurgents
National Liberation Movements

International
Organizations

The
individual

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 I. Concept.
The conception and definition of International Law, as proposed by
writers at any period in history, have had a great influence on the problem of
determining who are the subjects of International Law. Thus, according to the
classical definition that considers International Law as a set of norms that
govern the conduct of States in their mutual relations, only they, the States,
are subjects of International Law.
However, in recent times this classic definition has undergone a
change. Although the primary function of this branch continues to be to
regulate States among themselves, contemporary International Law has also
been concerned with international institutions and the individual.
The fact that the State is the typical subject of Public International Law
does not necessarily imply that other subjects cannot exist. Along with
sovereign States, there are other communities, international organizations,
religious and humanitarian organizations that the international community
recognizes as having international legal personality.

II. Legal personality in international law.

Legal personality in International Law implies the capacity to be the
holder of rights and duties. As a general rule, this capacity implies the
possibility of asserting these rights in the field of International Law (legal
subjectivity).
From the subjectivity of International Law, one must separate the legal
capacity to act, which is generally linked to the legal personality that exists in
International Law. An example of this is the German Empire, which as a
subject of International Law, did not disappear in any case with the dissolution
of the competent bodies to act, nor because the Allied powers assumed
supreme administration of the country in June 1945.

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 In summary, we can point out that: a subject of International Law is one
whose conduct is directly and effectively foreseen by International Law as the
content of a right or obligation.
However, it should be noted that international subjects are very different
from each other, just as the rights and obligations of which they are holders
are also diverse. The International Court of Justice in its advisory opinion on
reparation for damages suffered in the service of the United Nations stated:
The subjects of law in a legal system are not necessarily identical in terms of their
nature or the extent of their rights.
The amount or extent of the rights and obligations of each international subject can
only be determined by carrying out an analysis of the rules of International Law. 28
(27-33)

III. Sovereign States

According to the definition given by Verdross, a Sovereign State is:
A perfect and permanent human community capable of fully governing itself
independently, which must have the necessary capacity to impose its own legal
system and maintain international legal relations with the rest of the international
community.29 (28-34)

From this definition the characteristic notes of the State are evident,
and are the following:
Perfect human community. Which means that it is not a simple
association of men for particular purposes, but rather constitutes a
perfect organization of its members in which the State exercises
personal dominion.

Permanent community. It is manifested in that the State subsists in

the succession of generations and as a consequence can survive
revolutions, coups d'état, political changes, or any other circumstance
such as the modification of its form of government.
Self-government. It is understood that the State can independently

28 Opinion of 11 April 1949 on damages suffered in the service of the United Nations
29VERDROSS, ALFRED Public International Law, 5th. Translation edition Antonio Truyol and Serra,
Aguilar, SA Madrid 1969.

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 and freely choose its form of government, its internal organization and
the behavior of its members without the intervention or interference of
third States in internal affairs.
Independence. It is the ability of the State to determine itself, to decide
its foreign policy autonomously, without being subject to the guidelines
of another State.
Effective legal system. This consists of ensuring that its legal order is
respected and enforced against those who violate its rules, since in the
latter case it must have the capacity to sanction those who violate said
legal order.
International relations. Capacity to accept the rules of international
law and observe them with the corresponding organs of representation
abroad in order to direct the international relations of the State they
represent, in accordance with the principles of public international law.
Territory. Every State must possess a specific territory that constitutes
the spatial basis of territorial sovereignty and the imposition of an
effective legal order. Even if there is no exact delimitation of the territory
in its entirety, it is sufficient that there is an undisputed territorial core.

IV. Atypical subjects

Along with sovereign States, as has been pointed out previously, one of
the changes that classical International Law has undergone is the expansion
of its sphere of application to other subjects that differ from the State model
and that for this reason are called atypical subjects of International Law.
Among others we have the following:
States with partial international legal subjectivity
States with limited capacity to act.
Holy See.
Vatican City.
The Sovereign Order of Malta

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 Belligerents.
National Liberation Movements.

A. States with partial international legal subjectivity

They are, in principle, subject to the central State and only
exceptionally do they relate to third States under the immediate regulation of
Public International Law. For example: In Germany, according to the Basic
Law of the Federal Republic of Germany,30 (29-35) the Länder may conclude
treaties with foreign states with the consent of the federal government. In this
case, it is evident that the international legal subjectivity enjoyed by these
entities is partial since it is limited to the legal system of the Federation,
Confederation or Central State which attributes such powers to it.
In composite States (Federation, Confederation) only the State as a
whole is subject to International Law; however, the exceptional situation may
arise in which international legal subjectivity is recognized for a member State
of a Confederation, Federation or a Vassal State. Thus we have as an
example what is established in the Federal Constitution of the Swiss
Confederation regarding the Cantons, about which it states:31 (30-36)
Exceptionally, they retain the right to conclude treaties with foreign States on matters
relating to the public economy, neighbourhood relations and police, however, these
treaties must not contain anything contrary to the Confederation or to the rights of the
other cantons.

In these cases, it is evident that the international legal subjectivity

enjoyed by these entities is partial: It is limited to the legal system of the
Federation, Confederation or central State that grants it these powers. These
require recognition by third States of the international community through an
international treaty or constitutive recognition.

B. States with limited capacity to act

They are sovereign States, but their behaviour is subject exclusively to

30 Basic Law for the Federal Republic of Germany, Article 32, paragraph 3.
31 Article 56 of the Federal Constitution of the Swiss Confederation of 18 April 1999.

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the judgment of International Law, that is, they do not have full capacity to act.
They should not be confused with States with limited subjectivity, because
unlike them, States with limited capacity to act enjoy full international legal
subjectivity, but by reason of an international treaty, this is limited.
This figure may also arise in the situation of protected States whose
capacity may be circumscribed in favour of a third State. In this case, the
relationship occurs between two subjects of International Law; however, in the
case of States with partial international legal subjectivity, it occurs between a
subject of International Law and a local entity of a Federal State,
Confederation or Vassal State.
Examples of states with limited capacity to act include San Marino,
Liechtenstein, Monaco and Andorra, among others.

C. The Holy See

The international legal subjectivity of the Holy See was recognized by
the Italian Law of Guarantees of 13 May 1871, by granting the Pope the
position of a foreign sovereign.
This law stipulated:
* The recognition of the sacred and inviolable character of the person of
the Pope, which could not be challenged before the Italian courts.
* His penal protection against outrages (in this he was on a par with the
King of Italy).
* The protection of his freedom of action in his mission as head of the
Church (attribution to the Supreme Pontiff of the use of the Vatican and
Lateran palaces, immunity of his residence, active and passive right of
legation, right to sovereign honours, diplomatic immunity of foreign
agents accredited to the Holy See).
* The delivery to the Pope of an annual endowment of 3,225,000.00 lire in
compensation for the deprivation imposed on him of the Papal States.
However, it was denied any territorial sovereignty, since Italian

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 sovereignty extended even to the papal palaces, of which it was not
even the owner.

But the recognition of the Catholic Church as a subject of International

Law was solemnly confirmed under the Pontificate of Pius XI and the
government of Mussolini, who reached a conciliatory solution with the Lateran
Agreements of February 11, 1929.
The basic principles of the treaty are contained in the following articles:
Article 2. “Italy recognizes the sovereignty of the Holy See in the international sphere
as an attribute inherent to its nature, in conformity with its tradition and with the
demands of its mission in the world.”
Article 3. “Italy recognizes the Holy See's full ownership, exclusive and absolute
power and absolute jurisdiction over the Vatican, as it is currently constituted with all
its dependencies and endowments, thus creating Vatican City for the special
purposes and with the modalities contained in this treaty.”

Article 4. “The sovereignty and exclusive jurisdiction that Italy recognizes for the Holy
See over Vatican City implies, as a consequence, that no interference by the Italian
government can take place there and that there will be no authority other than that of
the Holy See.”

Article 26. “The Holy See affirms that, by the agreements signed today, it is
adequately in possession of all it needs to care for, with the necessary freedom and
independence, the pastoral government of the Diocese of Rome and of the Catholic
Church in Italy and in the world; it declares the Roman question definitively and
irrevocably resolved and therefore eliminated and recognizes the Kingdom of Italy
under the dynasty of the House of Savoy and with Rome as the capital of the Italian
State.”

According to Canon 361 of the Codex luris Canonici, the Holy See is
ordinarily understood to mean the meeting of the Roman Pontiff and the
higher bodies of the Roman Curia, that is, the congregations, tribunals and
offices that the Supreme Pontiff uses for the ordinary government of the
Church. On other occasions, according to the meaning of the canons of the
Codex, the Holy See can mean only the Supreme Pontiff. That said, the first
question arises as to whether the subject of International Law is the Catholic
Church or the Holy See.
In general terms, it can be said that the doctrine agrees in considering
the Holy See as a subject of International Law.

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 The Holy See currently enjoys international legal personality by
exercising the right of legation, participating in the conclusion of international
treaties and other international legal transactions, such as concordats, and is
subject to the Vienna Convention of 18 November 1961, which regulates the
activity of nuncios and internuncios.
Regarding concordats, their origin dates back to the beginning of the
12th century and International Law applies to them, as well as to other
international relations maintained with States and International Organizations.

D. Vatican City
The former Papal States were occupied by Italy on 20 September 1870
and incorporated into the kingdom, resulting in a conflict between Italy and the
Holy See, which, as we have seen, was put to an end by the Lateran Treaty,
which contained, among other things, a cession clause by which Italy returned
to the Holy See the small territory in which the Vatican is located, in order to
guarantee its complete independence from all temporal power.
This territory has since become the new Papal State called Vatican City
State.
The legal nature of this new entity has been much discussed; some
authors claim to see in it an independent State, associated with the Catholic
Church by a mere personal or real union. Others, however, deny that it even
constitutes a State, considering it as a territory over which the Church rules.
However, Vatican City is a State, since it is called to carry out acts of
legislation, administration and jurisdiction which differ completely from the
priestly functions of the Church, except that said State is not a sovereign
State but is derived from the ecclesiastical order.
The primary function of Vatican City is to provide the supreme head of
the Catholic Church with an independent basis for government, and its
secondary purpose is to ensure the common good of its members.
It is represented by the Supreme Pontiff, but the treaties and

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agreements that the Pope signs on ecclesiastical matters in his capacity as
supreme head of the Church (concordats) must be distinguished from those of
a secular nature in which he intervenes as a representative of Vatican City.
Like the Holy See, Vatican City is a member of international
organizations, but does not have its own diplomatic or consular
representation. As regards diplomatic representation, it is the responsibility of
the Holy See. With regard to consular relations, the Holy See does not
currently assign such officials.
Without entering into the doctrinal discussion of whether or not it is a
State, it can be concluded that Vatican City has an international legal
personality.

E. The Sovereign Order of Malta.

It is considered the oldest of the three great military orders. The Order
was founded before the capture of Jerusalem (1099, First Crusade) as a
monastic community dedicated to Saint John the Baptist that administered a
hospice-infirmary for pilgrims going to the Holy Land.

In 1291, Acre, the last Christian city in the Holy Land, fell and the Order
was provisionally established in Cyprus. The independence of the Order from
any other State, by virtue of papal documents, and its right to maintain armed
forces and fight wars, formed the basis of its international sovereignty. With
the occupation of the island of Rhodes, the Order also acquired territorial
sovereignty.

She was later expelled from Rhodes by Sultan Suleiman II. For the next
seven years the Order, although it retained its international sovereignty, was
without territory until, by cession of the Emperor Charles V - in his capacity as
King of Sicily - it obtained as sovereign fiefdom the islands of Malta, Gozo and
Comino, as well as Tripoli, in North Africa. The Order took possession of
Malta, with the approval of Pope Clement VII, under the provision that it
should remain neutral in wars between Christian nations.

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 In 1798, Napoleon Bonaparte, during his campaign in Egypt, occupied
the island of Malta and expelled the Order, finding itself once again without a
territorial headquarters.

After having had provisional headquarters in Messina, Catania and

Ferrara, the Order finally established itself in Rome in 1834, where it still
enjoys extraterritoriality in the Palazzo del Malta and the Villa del Aventino.

Since the second half of the 20th century, the international legal
subjectivity of the Sovereign Order of Malta has been discussed in the Courts
of the Roman Curia. Its character had been religious-military and had
territorial sovereignty. However, with the cardinal's sentence of May 24, 1953,
it was defined as a religious order dependent on the Holy See and under the
regime of Canon Law.

The Holy See grants the Order broad autonomy, which allows it to
acquire international rights and obligations towards third States that recognize
it. This international personality manifests itself in various ways; the Order
maintains diplomatic relations, has embassies and legations accredited to
countries on different continents and at the same time there is a diplomatic
corps accredited to the Order which are usually the same diplomats
accredited to the Holy See.

Among other powers, it has the power to enter into international treaties
and agreements for the performance of its hospital and healthcare activities.

As regards the Grand Master of the Order, Italy recognises him as a

foreign Head of State, granting diplomatic immunity to the headquarters of the
Order.
Consequently, as a recipient of international rights and obligations, it
enjoys international legal personality, regardless of whether it is subordinate
to the Holy See with regard to its status as a religious order.

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F. Belligerents
When a rebel group dominates a significant part of the territory,
exercising effective control over it, it acquires the characteristic of
belligerence, constituting itself as an insurrectional group in conflict with a
central State, and may even be recognized as belligerent by third States or by
the same State whose territory it exercises belligerent actions.
For an insurgent group to be recognized as a belligerent, it must
comply with the requirements of Article 1 of Additional Protocol II of the 1977
Geneva Convention, which consist of the group having:
. A responsible command.

• Sustained operations
• Specific territory where the operations are deployed.
domain absolute domain of the same and

• That they meet the subjective requirement, consisting of their purpose

being to establish the legitimate government

Recognition by third States or by the central State is discretionary.

As regards the effects of recognition, the following is stated:
In the case of belligerence, it is the central power that grants them the legal status of
belligerents with which they acquire a certain degree of international subjectivity by
constituting themselves to some extent as subjects of international law, thus freeing
the state from international responsibility for the acts committed by them. This
recognition has the effect of giving third States the possibility of accusing the said
belligerent community of damages suffered before the relevant international
organisations.

By reason of the recognition of belligerency, the rebels acquire a temporary

international legal subjectivity and when carrying out all acts related to the conflict,
they will be subject to the common article 3 of the four Geneva Conventions of 1949,
the second additional protocol of the Geneva Conventions of 1977 and the other
rules of International Law on matters of war.

This international legal subjectivity is temporary, in the sense that it can disappear
because the belligerent group is defeated, or because it transforms from a belligerent
group into a de facto government dominating not only part of the territory but its
entirety.

Before the recognition of belligerency by the central power, third States must refrain

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 from the possibility of openly or covertly helping the belligerent State or community.
After recognition, third States must observe neutrality in order not to violate the
principle of non-intervention in the internal affairs of other States.

G. The Insurgents.
International practice allows, in addition to the recognition of
belligerence, the recognition of simple insurgents. They are groups of people
who rebelled against the recognized government but only control a few towns
and also occasionally have some warships.
The Havana Convention of February 29, 1928, on the rights and duties
of States in case of war, refers to these groups by stating:32 (31-37)
Any insurgent warship or merchant vessel, equipped by the rebellion, which arrives
in a foreign country or seeks refuge there, will be handed over by the government of
the latter to the constituted government of the country in civil strife, and the crew will
be considered political refugees.

It is clear from the above that there is a special and benevolent

regulation of a primarily political nature, and as Verdross points out: The
determination of the breadth of rights depends entirely on the discretion of the
State that recognizes them.

H. National liberation movements

National liberation movements arise from the struggle for independence
of peoples subjected to colonization.
The concept of armed peoples' struggle for their liberation, or of
national liberation movements, is closely linked to the principle of self-
determination of peoples, according to which the governments of the
metropolises have the obligation to refrain from the use of force so that their
colonies can peacefully achieve independence.
On December 14, 1960, the United Nations General Assembly
approved resolution 1514-XV entitled: Declaration on the Granting of
Independence to Colonial Countries and Peoples. Since that date, there have
been various resolutions in which the United Nations General Assembly
equates wars of national liberation with international conflicts, which
32 Art. 30 of the Havana Convention of 29 February 1928 on the rights and duties of states in the event of war.

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constitutes the right of these movements to have the Geneva Conventions of
1949 and the Protocols of 1977 relating to International Humanitarian Law
applied to them, as well as international standards on war, especially the
Fourth Hague Convention on the Laws and Customs of War on Land.
The international legal personality of national liberation movements is
partial and is limited to the achievement of the goals pursued by these
movements and which are basically expressed in humanitarian law, treaty law
and international relations.
National liberation movements such as the Palestine Liberation
Organization (PLO) and the South West African People's Organization
(SWAPO) have held observer status at the United Nations.

IV. International Organizations

The concept of International Organizations refers mainly to interstate
organizations in which States and other subjects of International Law
participate.
The doctrine has not yet established a fixed definition of International
Organization, but within the different criteria there is unanimity regarding two
constitutive33 elements. (32-38)
. The International Organization is based on a (constitutive) treaty of
International Law between at least two States (or other subjects of
International Law).
. An International Organization can decide on the internal structure of
its own bodies and transfer them abroad.

The legal capacity of an International Organization under International

Law is obtained by an express provision in the treaty of its creation, but it may
also be implicit in the objectives contemplated in the treaty or in some cases

33 Herdegen Mathias Public International Law, first edition, translation Marcela Anzola Ll. M. UNAM, Konrad
Adenauer Foundation, Mexico, 2005

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in the provisions of the treaty on the rights and duties of the Organization
(especially in relation to the possibility of concluding international treaties).
The recognition of the legal capacity of international organizations was
categorically confirmed in the advisory opinion of 11 April 1949 by the
International Court of Justice on the claims of the United Nations for
compensation in the Bernadotte case for damages suffered in the service of
the United34 Nations. (33-39)
V. The individual.
It has been discussed whether the individual has international legal
personality and whether International Law contains norms that protect rights
and obligations addressed to private individuals, whether physical or legal.
The authors are unanimous in stating that individuals constitute – and
have long constituted in the history of International Law – the natural concern
of that law. However, there is no consensus on whether this concern of
International Law for the individual makes him a subject of it, with possession
not only of rights and obligations, but also with the capacity to assert them.
In general terms, at the present stage in the development of
International Law, the situation of the individual has not been very clear due to
the lack of distinction between the recognition of rights that produce effects for
the benefit of the individual, and the different fact that he can assert those
rights by himself.
It is in the field of human rights and international humanitarian law
where the individual finds support for his international subjectivity. Thus, we
have various instruments that contain them, such as the Convention on
Genocide, of December 9, 1948; the Convention on the Status of Refugees,
of 1951 and its Protocol of 1967; the Conventions on Human Rights of Rome,
of November 4, 1950, and of San José, Costa Rica, of November 22, 1969.
However, this international subjectivity is very limited given that they do
not have the active procedural capacity to file a claim. In other words, as

34 Reparation for Injuries Suffered in the Service of the United Nations, ICJ Reports, 1949, p. 174

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stated in this regard by Héctor Fix-Zamudio35 (34-40), only the States and the
Inter-American Commission have the active procedural capacity to file a claim
before the Court.

Inter-American Court of Human Rights. (QUOTE IN ITALIC LETTER)

CHAPTER FIVE

SOVEREIGN STATE

Specific objective.
In this chapter, the concept of State and its characteristics, as well as
its recognition and the recognition of governments, will be analyzed from the
point of view of International Law. We will also look in detail at what is known
in International Law as state competences, which consist of all those
elements that, as integrators of the State, are present in international legal
relations and around which many of the basic problems of International Law
revolve. These are: territory, territorial borders, air and outer space, territorial
sea and population.

DOMAINS
Upon completion of this chapter, the student will:

35 HÉCTOR FIX-ZAMUDIO, The American system for the protection of human rights, in Notebooks of the
Institute of Legal Research, year I, No. 1, Mexico, January-April 1986, p.66

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• Specifies the elements that make up the State at an international level.

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 • It identifies the territory as part of the fundamental structure of the State,
as well as each of the elements that comprise it.
• It sets out the methods for delimiting territorial borders, as well as
territorial airspace and sea.
• Explains what the population is within the elements of the State and the
rules that International Law applies regarding the position of the human
person.

Exercises and practices

Conduct a review and analysis of the constitutional and legal precepts that
determine the maritime zone, airspace, outer space, and the portion of land that
makes up the territory of the Mexican Republic.
Research and comment on the content of an international treaty that has
established the delimitation of borders between States.
Hold a forum to review the way in which the situation of nationals and foreigners
is regulated from the perspective of the Mexican legal system.

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 Concept and characteristic notes

(
Recognition Declarative theory of recognition.
- Constitutive theory
of States.
of recognition.
\

F
Jefferson Doctrine
.
Tovar Doctrine. to recognition
Recognition .
of governments.
of governments. Wilson Doctrine.
Estrada Doctrine.
Occupation.
•
Acquisitive
/ Acquisition of prescription.
territorial Assignment
sovereignty
State Judicial
Sovereign About its territory A \ award.

Land borders
Airspace
Marine spaces
Yo
F
Nationals and the action of
diplomatic protection
 State competencies

I. Concept and characteristic notes

The concept of State has been the subject of various definitions, which is
understandable taking into account the many factors that converge in it and the various
approaches with which it is examined, coming from disciplines such as political science,
sociology and law, among others. We will examine the legal notion below.

Legal notion of State

The definition of State from the point of view of legal science is built from the
conjunction of three elements: people, territory and sovereignty. The following definition
shows the interpretation of these three elements.
Commonly accepted among jurists is the definition of Constantino Mortati: The State is
a legal system for general purposes that exercises sovereign power in a given territory, to
which the subjects that belong to it are necessarily subordinated.
Each of the constituent elements of the State can be defined as follows:

• The territory. Place in which the State exercises its sovereignty and is constituted not
only by the land but also by the subsoil, the marine and submarine areas and the
airspace, the electromagnetic spectrum and the corresponding segment of the
geostationary orbit.
• The people. Made up of all persons who are in that territory and who are therefore
under the influence of what is determined by the legal system.

• Sovereignty. Understood as the characteristic of state power that implies that said

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 power is supreme in the internal order and independent in the external order.

• The right. As an instrument of sovereignty, it regulates and relates these three

elements.

II. Recognition of States

The recognition of States must be understood as: the act by which the other member
nations of the international community become aware, for certain purposes, that a new entity
has emerged in international life.(3635-41)
Recognition is considered a unilateral act by the State by which it verifies the
concurrence of the constituent elements of a new State and decides to consider it as a
member of the international community.
Two doctrines have been developed in relation to this topic: the declarative theory and
the constitutive theory of recognition.

A. Declarative theory of recognition

As its name indicates, only declarative effects are attributed to recognition. In this
case, the State or States that recognize the new State must only verify that it meets the
essential requirements for its existence (self-government, independence, effective legal
system).
B. Constitutive theory of recognition
For those authors who follow this doctrine, recognition is considered an indispensable
element for the existence of the new State and they affirm that international personality
cannot exist without recognition.
In international practice, we must not lose sight of the fact that, since State recognition
is a discretionary act, it is generally carried out based on political interests. Despite this, some
authors claim that it is an act of legal essence that is exercised in the fulfillment of an
obligation.
Loretta Ortiz Ahlf, for her part, believes that recognition should be granted when the
new State establishes itself as such and meets the necessary requirements for its existence.
In conclusion, it should be noted that recognition can be granted individually, expressly
36 Op. Cit. Note 2, p. 256

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or tacitly, such as the beginning of diplomatic and consular relations, when the new State is
allowed to be a party to a treaty or when the entry of a new State as a member of the United
Nations is accepted.

III. Recognition of Governments

In this regard, César Sepúlveda points out that both recognitions should not be
confused since they are different acts. While the recognition of States has to do with the birth
of the international legal personality of a new entity, the recognition of governments only
refers to the succession of authorities within a State that in no way alters its legal personality,
which, it says, remains identical.
At the same time, it defines the recognition of governments as: "The act by which
consent is given to continue the usual relations of exchange with the new regime37." (36-42)
The recognition of a new State should not be confused with that of a new government.
The first involves recognizing the international legal personality of the new State, while the
second does not discuss the international personality but rather its form of government.
Government recognition operates in the following situations:
. Frequent changes in government. They occur in a constitutionally provided
sequence and in which recognition is implicit in the congratulations made to the new
government or in the maintenance of diplomatic and consular relations.
. Violent changes due to a coup d'état. In which case, recognition should not be
premature. States must ensure that the new government exercises effective control
over the population and the territory in which it is based.

As with the recognition of States, there are two opposing currents: those who maintain
that the recognition of governments is only a political act, and those who declare that there is
a right of the new government to be recognized and a duty of other States to recognize it,
since otherwise it would be denying prerogatives such as international aid, denial of legal
personality, capacity to speak in the name of the State, which reduces it to a capitis
deminutio of the State.
Recognition of governments is a discretionary act. States are under no obligation to
recognise the new government, although the question has arisen in doctrine and practice as
to whether certain requirements must be met or not before such recognition is granted.
37 Idem.

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 TO. Doctrines relating to the recognition of governments (bold)

The doctrines relating to the recognition of governments arose and developed primarily on the
American continent. They arose as a consequence of the political instability of Latin American
nations during the 19th century and until the mid-20th century. Among the most significant we
can point out the following:

• Jefferson Doctrine
• Tobar Doctrine

• Doctrine Wilson
• Doctrine Road
• Doctrine Diaz Ordaz

1. Jefferson Doctrine
It arises from the pronouncement made in 1792 by the then Secretary of State Thomas
Jefferson. This statement is related to the attitude of the American government towards the
events in France that determined the end of the monarchy and the establishment of the
republic.
In an instruction dated November 7, 1792 to Morris, United States Minister in Paris,
Jefferson expressed what later became the central part of his doctrine:
It is in accordance with our principles to determine that a legitimate government is one created
by the substantially declared will of the nation.38 (37-43)

Thus, Jefferson's doctrine initially only required objective proof of the declaration
of the popular will. In another communication to the same diplomatic agent, he
declared:
Evidently we cannot deny to any nation that right on which our own government is founded:
That any nation may govern itself in any manner it pleases, and change that manner at its own
will, and may carry on its business with foreign nations through any body it thinks proper,
whether monarch, convention, assembly, president, or whatever it chooses. The will of the
nation is the only essential question to consider.39 (38-44)

This declaration breaks with the traditional principle of dynastic legitimacy. In

theory, only one objective test is required: the substantial nature of the declaration of
38 Jefferson to Morris, Nov. 7, 1792, MS Inst. Ministers, p. 215
39 Moore, Digest of International Law, Washington 1906, Vol I. p. 120

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the popular will. With subsequent practice this criterion was modified to additionally
require that:
The new government has proven that it is capable and willing to fulfil the commitments made
by its predecessors.
The first time the new requirement was made was regarding the issue of recognition of
the government of General Porfirio Díaz in Mexico in 1877. Thus, on May 16 of that year,
Foster, ambassador of the United States of America in Mexico, stated the following:
In the present case, our government expects, before recognizing General Díaz as President of
Mexico, that he ensure that his election is approved by the Mexican people and that his
administration has the stability to last and the willingness to comply with the norms of
international courtesy and the obligations of the Treaties. Such recognition, if granted, would
imply more than a new formal settlement, the belief that the government thus recognized will
zealously discharge its duties and observe the spirit of its Treaties.

In this statement you can see the three requirements that in practice
For the recognition of a new government, the United States demanded: the consent of the
popular will, effectiveness and interest in fulfilling previously made commitments.

2. Tobar Doctrine
This doctrine represents a return to the European theory of legitimacy. It was stated by
Dr. Carlos Tobar, Minister of Foreign Affairs of the Republic of Ecuador in a letter dated
March 15, 1907 and addressed to the Consul of Bolivia in Brussels, which states:
The American republics, for their good name and credit, apart from other human and altruistic
considerations, must intervene indirectly in the internal decisions of the republics of the
continent. This intervention could consist at least in the non-recognition of de facto
governments arising from revolutions against the constitution.40 (39-45)

For some interpreters, Tobar also presented his doctrine as a means to prevent
European interventions in cases of revolution under the pretext of protecting the lives or
interests of its nationals. It was thus argued that agreed collective intervention would be a
lesser evil and that in this way it did not really constitute intervention.
With this statement, Tobar gives a regression to the position of legitimacy that
originally referred to dynastic legitimacy that was founded on the divine origin of the monarch
(European Doctrine), but later became constitutional, based on adherence to the internal
norms of political organization of a country (American or modern doctrine).
The application of the Tobar doctrine created the risk that the principle of non-
intervention in the internal affairs of a State would be violated by recognising governments

40 Arangua Rives Carlos, The Intervention, Monroe Doctrine Drago and Tobar, Santiago 1924, pp 225-226.

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after verifying their legitimacy. This doctrine was recognized in the General Treaty of Peace
and Friendship, adopted in Washington on December 20, 1907, to which Costa Rica,
Honduras, Nicaragua, Panama and El Salvador were party, the first article of which stated:
The governments of the contracting parties shall not recognize any government which arises in
any of the five republics as a result of a coup d'état or a revolution against a recognized
government, until the freely elected representatives of the people have reorganized the country
in a constitutional manner.41 (40-46)

The formula of this convention was applied in some cases with dubious success. Later,
again at the initiative of the United States of America, the Central American nations signed
the Treaty of Peace and Friendship in Washington on February 7, 1923, which repeats the
formula of the 1907 Convention, adding the reference to not recognizing the persons elected
President, Vice President or designated in the following cases:
If he were the leader or one of the leaders of the coup d'état or the revolution or if he were by
consanguinity or affinity an ascendant, descendant or brother of one of them.

If he had been Secretary of State or had held high military command when the coup d'état or
revolution took place or when the election was held, or had held that position or command
within six months after the coup d'état, revolution or election.

When the choice of the government that arises falls on a citizen expressly or undoubtedly
disqualified by the constitution of his country from being elected President, Vice President or
designated42. (41-47)

The United States, although not a party to the treaty, was its main observer, so much
so that it applied it to the revolutionary movements of Honduras (1924), Nicaragua (1926),
Guatemala (1930) and El Salvador (1931).

By way of conclusion to the analysis of the Tobar Doctrine, the Internationalist

Cesar Sepulveda, among other things, points out:
Even if the practical difficulties of the Legitimist doctrine can be overcome, there remains a
danger that excessive emphasis will be placed on technical and legalistic considerations rather
than on just principles and fair examinations of what may be best for the country concerned,
and that neither the so-called Tobar Doctrine nor the Treaties of 1907 and 1923, whether or
not admitted as a practical representation of it, were ever fit for the purpose for which they
were conceived43. (42.48)

3. Wilson Doctrine
This doctrine emerges from a speech made by the President

41 General Treaty of Peace and Friendship, Art. I, Washington, Dec. 20, 1907.
42 General Treaty of Peace and Friendship, Art. II, February 7, 1923
43 Sepúlveda César, The Doctrines of Recognition of Governments and their Practice,
http://www.juridicas.unam.mx/publica/librev/rev/indercom/cont/16/dtr/dtr1.pdfhtt, November 14, 2009

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Wilson on March 11, 1913, in which he published his ideas on the nature of a just republican
government, and possibly unwittingly advocated the doctrine propounded by Tobar six years
earlier.
Months later he sent a circular to the American diplomatic missions from which the
essential part of said policy emerged. This circular states:
The purpose of the United States is solely and exclusively to ensure peace and order in
Central America, ensuring that the process of self-government is not interrupted or abandoned.
Usurpations like that of General Huerta threaten the peace and development of America like
no other. Not only do they make the development of an orderly government impossible, but
they tend to forget the law, constantly threatening the lives and fortunes of nationals and
foreigners, invalidating contracts and concessions in the manner that the usurper decides for
his benefit and to harm both national credit and all the foundations of domestic or foreign
business. It is the purpose of the United States, therefore, to discredit and defeat such
usurpations wherever they occur.44 (43-49)

Wilson's policy was applied in several instances. In none of them with success. Its
application was practically limited to Mexico and Central America.
As far as our country is concerned, Wilson's apparent rectitude is contradicted by the
position of the State Department, which stated that it was willing to consider the new
government of General Huerta as legally established as long as there was an agreement to
settle certain pending issues between the two countries.

Wilson's own administration was not consistent with the Doctrine to begin with, as on at
least two occasions the United States recognized revolutionary regimes without adhering at
all to the rule of constitutional legitimacy. In both cases in Peru.
The same criticisms made against the conventions of 1907 and 1923 and against the
Tobar doctrine are valid against Wilson's policy. Far from being a factor of peace in
international relations, it was, on the contrary, a failure. It did not inspire respect for
constitutional government, nor did it prevent the emergence of revolutions.

4. Estrada Doctrine
The Estrada Doctrine arose with the declaration of the Secretary of Foreign Affairs of
Mexico, Genaro Estrada, on the occasion of the revolutionary political crises in various
countries in the region (Dominican Republic, Haiti, Bolivia, Peru and Argentina), which had
installed de facto governments and which traditionally required recognition by other nations.
The Mexican government issued the following statement to the press on September
27, 1930:

44 Idem.

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 Due to the changes that have occurred in some South American countries, the Mexican
government has had to decide, once again, to apply the theory called recognition of
governments.

It is a well-known fact that Mexico has suffered, like few other countries, in recent years, the
consequences of this doctrine, which leaves it up to foreign governments to decide on the
legitimacy or illegitimacy of another regime, thus producing situations in which the legal
capacity or national rise of governments or authorities seems to be subordinated to the opinion
of outsiders.
The doctrine of so-called recognitions has been applied since the Great War, particularly to
nations of this continent, without, in well-known cases of regime changes in European
countries, the governments of the nations having expressly recognized them, which is why the
system has become a specialty for Latin American republics.
After a very careful study of the matter, the Mexican government has transmitted instructions to
its ministers or chargés d'affaires in the countries affected by the recent political crises,
informing them that Mexico does not support granting recognition, because it considers this to
be a degrading practice that, in addition to harming the sovereignty of other nations, places
them in the position of having their internal affairs qualified in any way by other governments
who in fact assume a critical attitude when deciding, favorably or unfavorably, on the legal
capacity of foreign regimes.
Consequently, the Mexican government limits itself to maintaining or withdrawing, when it
deems appropriate, similar diplomats that the respective nations have accredited in Mexico,
without qualifying, either hastily or a posteriori, the right that foreign nations have to accept,
maintain, or replace their governments or authorities. Naturally, as regards the usual forms for
accrediting and receiving agents and exchanging autograph letters from heads of state and
foreign ministries, they will continue to use the same ones that are currently accepted by
international law and diplomatic law.45 (44-50)

This doctrine has been questioned since it is pointed out that, on the one hand,
Estrada speaks out against express recognition on the basis that it constitutes an insulting
and degrading practice, but on the other hand, he reaffirms implicit recognition with all its trail
of undesirable effects.
However, the Estrada formula must be understood as a protest by the Mexican
government against the vicious practice of exercising recognition of governments as a means
to obtain certain unilateral advantages or as an interventionist act in the internal affairs of a
country.

5. Diaz Ordaz Doctrine

This doctrine is based on a speech given on April 15, 1969 by the Secretary of Foreign
Affairs of Mexico, Antonio Carrillo Flores, invoking the instructions received from President
Díaz Ordaz and explaining:
That there should not be a lack of a bridge of communication with the nations of Latin America,
45 El Universal, Mexico, September 27, 1930.

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 and that for this purpose Mexico wishes to have a solution of continuity in its relations with the
other Latin American countries, whatever the character or orientation of their governments.

This doctrine does not mean an abandonment of the Estrada doctrine, because
Mexico continues to abstain from speaking of recognition or non-recognition of the
governments in question, but it is a modification in the sense that Mexico is now making clear
its desire to continue relations, regardless of the nature or orientation of the governments.
Unfortunately, this doctrine or thesis of continuity has not actually been invoked by the
Mexican government, which has limited itself to maintaining or withdrawing its diplomatic
representatives, without any special reference to the thesis of continuity; it has only
mentioned the Estrada doctrine. Classic examples include the coup d'état in Chile that
overthrew President Allende in 1973 and which meant the breaking of relations between the
two countries, as well as the controversy that arose in relation to the case with Spain, in
which Mexico refused to recognise the government of General Franco, who effectively
controlled the country, while recognising the government of the Spanish Republic in exile.
To this effect, Loretta Ortiz Ahlf points out:
Considering the current international situation, it seems difficult for Mexico to abandon the
Estrada doctrine, although it would be convenient for its foreign policy not to abandon it, but to
review it to give it an authentic meaning, avoiding through automatic recognition the discretion
in whose exercise a value judgment is always implicitly involved.46 (45-51)

IV. State competencies

State competences are understood as the ability of States to exercise their authority in
accordance with International Law, over both property and situations, persons and activities
located or carried out within their territory.
The function of Public International Law is to determine how the State's powers are
distributed, as well as the powers between States and the international community, based on
respect for their sovereignty.
The territorial powers of the State have a dual nature, that is, an object and an
exercise. The State can exercise what in private law are called real rights and also possesses
a population over which the government of a State can exercise its authority. This distinction
corresponds to what in Roman law is called dominium and imperium.

A. State powers over the territory.

46 Op. Cit. Note 1, p. 100

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 The exercise of the State's powers takes place on a physical basis called territory.
From a formal point of view, the territory has been defined

as: the space in which the State effectively imposes its legal system. This definition has not
been unanimously accepted in doctrine, since it fails to unravel the essence of the
substantive power that the State exercises with respect to its territory.
In this regard, Verdross points out:
The territory cannot be defined, therefore, as the effective area, or even the main area of the
State's dominion, as the supporters of the theory of competition claim. The State territory is
rather the territory over which International Law recognizes a State's territorial 47 sovereignty."
(46-52)

It follows from the above that the territory of a State should not be confused with the
area of its dominion, that is, where effective jurisdiction is exercised. It is certainly normal for
States to exercise their dominion over their territory, but the latter does not lose its sovereign
character because the corresponding State ceases to exercise its jurisdiction over it. Clear
examples of this type of situation are those that currently exist in Panama and Puerto Rico in
relation to the treaties signed with the United States, through which they confer the right of
administration. Thus, territory must be defined as: the space over which a State exercises its
territorial48 sovereignty. (47-53)
This sovereignty constitutes the international legal power to dispose of the territory in
accordance with the rules of Public International Law. Based on this power, States can
prevent third States from intervening in their territory, granting territorial sovereignty to
another State or only granting jurisdiction over it.

1. Acquisition of territorial sovereignty

The means by which the State acquires territorial sovereignty in accordance with
International Law, among others, are considered occupation, acquisitive prescription, cession
and judicial adjudication.

a. Occupation
This form of acquisition can be considered the oldest and it is well known that a
territory without an owner can be occupied by whoever takes possession of it. Nowadays, this
means of acquisition has lost value because the division of the world has practically been

47 Op. Cit. note 34 p. 207

48 Idem.

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completed, but the rules that regulated it are still valid in the resolution of disputes motivated
by previous acquisitions.
The occupation must meet the following requirements: the occupant must be a
sovereign State, the territory must always have been an ownerless territory (terra nullíus),
and the occupant must have established effective ownership (ánimus dómini) on a permanent
basis. With the fullness of the occupation, the occupier acquires territorial sovereignty.

b. acquisitive prescription
The acquisition of a territory by prescription, unlike occupation, does not require a terra
nullius. A lasting and effective occupation - animus domini - of a territory, which at the time of
occupation still belongs to another State or whose belonging to one or the other State is in
dispute, is sufficient. An acquisition by prescription always presupposes an unaltered,
uninterrupted and undisputed exercise of lordship.49 (48-54)
Notwithstanding the prohibition of any violent annexation established in the Charter of
the United Nations50 Organization, (49-55) if this does not encounter opposition and the
situation created is tolerated by the other States, prescription will occur over time, since
International Law ends up legalizing the permanent and calm position.

c. Assignment
It is the transfer by conventional means of territorial sovereignty over a certain territory
from one State to another. The transfer is made concrete by the renunciation by the transferor
State and by the acquisition by the transferee. It is legally perfected until the effective
occupation by the new sovereign.
Recognition of the transfer by third States is only required if the transfer affects their
rights.

It is necessary to distinguish from the actual transfer the so-called administrative

transfer, by which a sovereign State grants another the power to occupy a part of its territory
and exercise its power therein. The administrative transfer is not really a transfer, since the
transferor retains territorial sovereignty and only grants the other State the right to exercise its
dominion there.

49 Thus, the American-Mexican arbitration ruling of June 15, 1911 in the Chamizal case, A. J. ,5 (1911), 785. cited by
Verdross, Alfred Public International Law, 5th. Translation edition Antonio Truyol and Serra, Aguilar, S. A., Madrid 1969.
50 Charter of the United Nations, XXII, B.

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d. Judicial award
Adjudication is understood as the acquisition of sovereignty through the ruling of an
arbitration tribunal or other bodies of international jurisdiction. In some cases, the judgment is
a declaratory judgment stating that territorial sovereignty corresponds to a certain State by
virtue of a recognized legal title (occupation, prescription or transfer). In others, it is a
constitutive judgment that awards a State sovereignty over a certain territory according to its
free appreciation, which is feasible when the parties in conflict confer on the Court or an
Arbitration Tribunal the power to decide a border or territorial conflict.

2. Land borders
The term border is defined in International Law as the line that marks the external limit
of the territory of a State, that is, the line that determines the spatial scope, where a State
exercises its sovereignty to the exclusion of others.
Traditionally, the concept of border was linked to land space, but today this category
includes physically different spaces over which state sovereignty is also projected, such as
airspace and maritime spaces. This is why reference must currently be made to different
types of borders: territorial, air, maritime, river and lake.
The determination of borders is carried out through an operation that contains two
stages: delimitation and demarcation.
Border delimitation refers to the intellectual operation – normally carried out through
diplomatic channels – by which the location of the border is chosen and the spatial extension
of state power is specified.
Delimiting therefore consists of: defining the border line in an abstract manner and on
paper.

This operation is contained in an agreement which for this reason is called a border or
boundary treaty. These treaties enjoy complete stability and permanence which can only be
affected by a subsequent agreement. The effects of delimitation are subordinate to a second
operation: demarcation.
Demarcation translates into material and technical work of verification and
concretization. It consists of transferring onto the ground the terms of a previously agreed -
delimitation. This is building the border on the ground.
The methods by which demarcation is carried out, that is, the visible marks of a border,

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vary in relation to the character of the terrain and may consist of milestones, boundary stones
or any type of construction.
In order to establish their borders, States undergo a process of preliminary -
negotiations to define delimitation criteria or principles. The most commonly used criteria are
natural and artificial. Natural boundaries take the geomorphological characteristics of the
terrain as a reference. In mountain ranges, the line of the highest peaks (orographic criterion),
the line of the foot of the mountains or the watershed line (hydrographic criterion) can be
used. In rivers, the boundary line may be situated on either bank or on the equidistant median
line and if they are navigable by the deepest navigation line or the median line of the main
navigation channel.
Other principles of determination are different from natural phenomena; for example,
in desert areas, astronomical lines such as meridians and parallels are adopted to draw
borders.
The uti possidetis principle, which is deeply rooted in Latin American countries, can
also be applied, according to which the limits of the internal administrative divisions
established by the colonial powers are taken into account.
As regards the drawing of boundaries on a map, this may be incorporated as an annex
to the boundary treaty or it may be drawn up by a boundary commission at a later date, as
provided for in the treaty itself.
Finally, the demarcation of the borders in the territory is managed jointly by a boundary
commission and local authorities. This demarcation is indicated as has been indicated by
visible signs.
Uti possidetis
The emergence of the doctrine uti possidetis juris51 (50-56) has a religious, political
and legal framework that originates gradually and adapts to the new times. Its beginnings
arose from the very depths of the titles that supported the dominion and conquest of the
Spanish Empire and its application has occurred with the emergence of new States that were
previously under some form of colonial rule and at some point in their history managed to
become independent from the metropolis. Such was the case of the Latin American countries
where, in order to avoid territorial disputes between these new States, it was decided to apply
the principle of uti possidetis juris, that is, it was decided to maintain the old colonial territorial

51 The principle of uti possidetis has its origin in the edicts that the praetor could order under Roman law so that, in a
dispute over the possession of a certain immovable property, the current possessor would not be disturbed in that possession
in the meantime.

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divisions, which became the international boundaries of the new States.
The International Court of Justice in the case concerning the frontier dispute (Burkina
Faso v. Republic of Mali) whose judgment was given on December 22, 1986 determined the
following:52 (51-57)
The principle of uti possidetis juris gives precedence to legal title over effective possession as
the basis of sovereignty. Its main purpose is to ensure respect for the territorial limits that
existed at the time independence was achieved. When the boundaries were nothing more than
delimitations between different administrative divisions or colonies all subject to the same
sovereign, the application of this principle resulted in their transformation into international
borders ［…］.

The obligation to respect pre-existing international borders derives from a general rule of
international law relating to the succession of States.

An example in our country can be found in the second article of the Constitution of
1824, which provided:
Its territory includes what was the viceroyalty formerly called New Spain, what was called the
Captaincy General of Yucatan, the commanderies formerly called the internal provinces of the
east and west, and that of Lower and Upper California with the annexed lands and adjacent
islands in both seas.

Some authors believe that uti possidetis only has conventional legal value, that is, it is
valid as a norm to the extent that it appears incorporated into a treaty and is also applicable in
cases where it is included in the Constitution or in the internal laws of a State.
The practice of uti possidetis can also be found in arbitration agreements entered into
to resolve territorial disputes.

3. Airspace
The basic rule in International Law regarding the legal regime of airspace over the
territory and territorial sea is that it forms an integral part of the territory of a State and
remains under the exclusive jurisdiction of the underlying State.
The territorial sovereignty of the State extends to the column of air above its territory.
General recognition of state sovereignty over airspace came after the First World War with
the Paris Convention on Aerial Navigation of 1919, later confirmed by the Chicago
Convention of 1944.
This last convention constitutes the international regulations governing international
civil aviation, its scope of application is limited to civil aircraft and does not extend to State
52 United Nations Summaries of Judgments, Advisory Opinions and Orders of the International Court of Justice 1948-
1991, paragraphs 20 to 26, p. 224, New York, 1992.

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aircraft and resumes some of the essential agreements of the Paris Convention of 1919, that
is: the sovereignty of the State over the airspace overlying its territory; the registration of the
aircraft as a determining criterion of its nationality and gives rise to the creation of the
International Civil Aviation Organization, with very broad functions relating to all aspects of
international civil aviation, of which practically all States are currently members.
In addition to the above, the aforementioned convention, considered as the Air
Constitution, establishes for regular air services what are known as the five freedoms of the
air, which consist of the following:

• The right of aircraft of one State to fly over the territory of another State without
stopping
• The freedom to make non-commercial technical stops for refuelling or repairs in the
event of damage.

• The right of aircraft of a State to disembark in the territory of other States both
passengers and correspondence or merchandise coming from the territory of the State
to which said aircraft belongs.

• The opposite right: to embark in a State, passengers, correspondence or merchandise

destined for the territory of the nationality of the aircraft.
• The right to embark passengers, correspondence and merchandise bound for the
territory of any other State and the right to disembark passengers, correspondence or
merchandise coming from any other State.

The above freedoms are not granted ipso facto between the States Parties to the
Convention but must be negotiated on the basis of bilateral agreements. In this way, the
authorities can grant all or some of the five freedoms according to their interests.
Bilateral agreements, also known as liner agreements, establish rules regarding
capacities, routes and rates, among other things; they may also determine limitations
regarding the number of passengers, frequency distribution, etc.
The proliferation of illegal acts affecting international civil aviation has given rise to a
regulatory reaction that has led to the adoption, under the auspices of the International Civil
Aviation Organization (ICAO), of three conventional instruments:
The Tokyo Convention (1963) on offences and other acts committed on board aircraft.
The Hague Convention for the Suppression of Unlawful Seizure of Aircraft (1970).
The Montreal Convention on the Suppression of Unlawful Acts against the Safety of

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 Aviation (1971).
All of them are aimed at punishing criminal offences relating to aircraft hijacking, providing
that the State Party in whose territory the alleged offender is located, if it does not proceed
with his extradition, must submit him to prosecution by its competent authorities without
exception and regardless of whether or not the offence was committed in its territory.

4. - Marine spaces.
In addition to the land territory and the airspace, the maritime domain that includes the
national sea and the territorial sea is considered part of the State's territory. The State enjoys
certain special rights as a coastal State over the contiguous zone, the exclusive economic
zone and the continental shelf, just as it shares rights on an equal basis with other member
States of international society, in the high seas and in “the area” which before the 1982
Convention on the Law of the Sea was known as “the seabed and ocean floor”.
The national sea is part of the territory of the State, and is formed by the waters
located within the limits of its land borders, and the baselines from which the extent of the
territorial sea begins to be measured. In the 1982 Convention on the Law of the Sea, they are
designated as internal waters, a term that had already been used interchangeably with the
national sea.
The national sea includes lakes, inland seas, ports, certain bays and gulfs, and canals
and rivers that are not international in whole or in part.
The territorial sea is the maritime space located between the national sea and the high
seas. It forms part of the territory of the State that exercises full sovereignty over it, although
subject to certain limitations that are regulated by the 1982 Convention on the Law of the
Sea.

B. State powers regarding people

A State is considered to be able to exercise jurisdiction over its nationals, in relation to
their conduct within or outside its territory. This is because it can exercise civil or criminal
jurisdiction, as well as impose taxes on them, require their entry into the armed forces and
subject them to a wide variety of orders without any other State being in a legal position to
object, according to International Law, to the way in which a State treats its own nationals.
The exercise of this power allows some States to exercise this jurisdiction to a greater
or lesser degree than others.

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 The question is whether a State can apply laws to its nationals abroad, and in this
case, the answer is that the respect required by the sovereignty of the territorial State
prevents the State of nationality from acting within the foreign territory to apply its own law;
but it is recognized that the State of nationality has a jurisdiction that authorizes it to bring suit
against its nationals while they are abroad, executing judgments on the property they have in
the country or on their persons when they return. You can also wait and prosecute them upon
their return for acts committed abroad.
However, the State has the power to ensure that the rights of its nationals who are
outside its territory are respected.
These issues require determining who are nationals of a State, the mechanisms that it
has available to protect its nationals abroad and the immigration regime.

1 . Nationals and the action of diplomatic protection

Nationality can be defined as the legal belonging of a person to the population that
constitutes a State. In principle, legal regulation in matters of nationality is a power of the
States; however, this power is limited by International Law.
The limitations are as follows:53 (52-58)

• A State can only regulate the acquisition or loss of its own

nationality.

• In principle, States must confer their nationality on persons

with which they have a real and close link (effective link). The following are
accepted as real or close ties: filiation with nationals, birth in the territory, marriage
of a national with a foreigner, and permanent residence in the State. However, the
mere fact of owning property or having a temporary occupation in the country is
not considered a sufficient link.

• The formal loss of nationality has no effect when it is used as a means to avoid
international responsibility on the part of the State.

• In the case of multiple nationality due to points of connection with different States,
each of these may consider the individual to be its national, and in the event that
protection is required before third States, the State with which it has an effective
relationship may exercise diplomatic action.

53 Op. Cit, note 1, p. 106.

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 • Naturalization of capable persons can only take place with their consent. This
limitation has its exceptions in the case of territorial transfer.

Under Public International Law, States have the power to claim illegal acts committed
against their nationals abroad. This claim is known as diplomatic protection action and
requires two requirements for its exercise. The first of these is limited to proving the effective
link between the State and its national, and the second requires the exhaustion of all internal
remedies by the offended national, except for denial of justice.

2 .- Diplomatic protection of legal entities

The exercise of the action of diplomatic protection of legal persons is based on
nationality, except that in this case the substantive rules that apply to these entities are
different from those of individuals for the purpose of recognizing their nationality.
In the case of legal entities, some authors claim that there is a customary rule, under
which two or more criteria are accepted to establish the link of nationality between a legal
entity and a State, among which are the place of incorporation, the place of effective control
of the company, the registered office and the nationality of the partners.
Other authors, however, claim that although States may adopt various criteria for
granting nationality in accordance with their internal law, it cannot be deduced from this that
there is a customary rule that accepts the terms mentioned as proof of a sufficient link to
exercise the action of diplomatic protection.
In both positions, a preference is observed towards the place of incorporation, but this
criterion is not generally accepted by the Court. However, it can be seen from the precedents
that in each specific case it determines (based on different links) whether the State in
question has ius standi to claim diplomatic protection in favor of a company.
In relation to the subject, Loretta Ortiz Ahlf points out that it is convenient to distinguish
two problems: on the one hand, the diplomatic protection of the shareholders of a company
that has a nationality other than that of the company, in which the damages caused are
suffered directly by the shareholders, for example: the expropriation of shares, impediments
to the right to exercise them, etc. In this case, diplomatic protection of the shareholders by the
State of which they are nationals is possible.
A different problem occurs when damages are caused to shareholders as a result of
damages arising directly from the company. In this case, the only State entitled to exercise

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diplomatic protection is that of the company's nationality.

3 .- Treatment of foreigners
Within International Law we find a set of rules that establish guarantees in favor of
foreigners, these are known as the minimum standard of rights. These rights derive basically
from international custom without prejudice to the conclusion of bilateral treaties establishing
specific guarantees for their nationals abroad.
From international practice we can deduce which rights comprise the minimum
standard and establish the following:

• Protection of life and interests against organized collective violence against

foreigners.
• Right not to be arbitrarily detained and to have an investigation carried out within a
reasonable time so that the interested party has the opportunity to be heard.

• Right not to be tortured and not to be subjected to inhuman treatment.

• To be guaranteed free access to the courts and not to be discriminated against

before them on the basis of nationality.
• The power to exercise certain basic civil rights, such as those relating to parent-
child relationships and, in general, those recognized in most States as family
rights.

The State must have a protection and prevention system that prevents foreigners from
violating the aforementioned rights, and if any violation occurs, it must take appropriate
coercive measures. Otherwise, the State of which the foreigner is a national may demand
international liability by exercising the action of diplomatic protection.
As regards the regime of foreign private property, the general rule in classical
International Law is that the rights acquired by foreigners must be respected; thus,
expropriation is only permitted when it is for reasons of public interest, it must not be
discriminatory but must be compensated in an adequate, effective and rapid manner.
In contemporary international law, the situation has changed with the recognition of the
permanent sovereignty that the State exercises over its natural resources.
In this regard, Jiménez de Aréchega maintains54: (53-59)

54 Jiménez de Aréchega, Eduardo cit. by Ortiz Ahlf Loretta Public International Law 3rd Edition 2005 Oxford Mexico, p.
112

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 The term "permanent" is intended to indicate that sovereignty over these resources and wealth
remains intact in the hands of the territorial State, which can never lose its legal capacity to
modify the destination or method of exploitation of these assets, whatever the arrangements
made in the past for their exploitation and administration. The right of each person is thus
recognized.
State to nationalize these resources or economic activities even if the State of which it is
successor or a previous government has committed itself, by treaty or contract, to exploit them
in a certain way or to not proceed with the nationalization of these riches.

In view of the above, the measures of expropriation and nationalization of natural

resources deserve a different treatment from that followed in classical International Law. This
is confirmed by the resolution of the United Nations General Assembly (1803 –XVII–) of
December 14, 1962 on permanent sovereignty over natural resources, which provides that: in
the case of nationalization, expropriation, or requisition, the owner shall be paid the -
corresponding compensation, in accordance with the regulations in force of the State that
adopts the measures in the exercise of its sovereignty in accordance with Public International
Law.

4 . The Calvo Clause

To avoid abuses in the granting of diplomatic protection, some Latin American countries
have inserted the Calvo Clause in contracts they enter into with foreigners domiciled in their
territory. By this clause, the foreign party waives the right to request diplomatic protection
from its government in the event of difficulties arising from the contract, and undertakes to
submit all claims to the laws, authorities and courts of the country with which it is contracting.

International jurisprudence is undecided regarding the value of this clause. So, we have
the following:

• At times it has been admitted to be fully valid, although failures in this regard are
few.

• In most cases, it has sought to limit the effects of the clause, either by declaring it
valid in the relations between the affected party and the defendant State, but
without the possibility of appeal against the plaintiff State; or by not taking it into
account in the event of a denial of justice. An example is the decision issued in
1920 by the United States-Mexico General Claims Commission in the North
American Dredging Co. case, in which the Commission emphasized the contract
stipulation in which the individual agreed to be treated as a national and renounced
diplomatic protection.

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 • He also ruled in favour of the clause being void. However, there are authors who
reject the validity of the Calvo Clause because they state that the right to provide
diplomatic protection belongs to the State, and that, therefore, an individual cannot
renounce a right that does not correspond to him, that is, the right to protection of
nationals abroad is a privilege of the State, not susceptible to repeal by an inter
alios act. It must be kept in mind that the trend that inspired the Calvo Clause
persists in Latin America.

In the Mexican legal system, the essence of this clause is contained in article 27
section 1 of the Constitution.
The Mexican government's opinion on this clause is that if it is evident that a private
individual cannot force the State of which he is a citizen not to exercise a right that
corresponds to him, it is also true that the renunciatory agreement signed by the foreigner
does not intend to express such a thing; what is required by it is that the foreigner considers
himself a national with respect to the assets that may correspond to him within our
jurisdiction, not invoking the protection of his government over them. This is an obligation
contracted individually between the foreigner and the government.
Regardless of the position adopted, this clause does not affect the exercise of the
action of diplomatic protection, since the State has the right to exercise it; therefore, its
inclusion in the various contracts, concessions or authorizations in which foreigners
participate is irrelevant.

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 CHAPTER SIX
JURISDICTIONAL
IMMUNITY OF THE STATES

Specific objective
This chapter will start from the sovereignty of the State as a fundamental
instrument of support to determine the cases and conditions under which the acts of a
State carried out in its territory or outside of it through its organs of governmental
representation, must be respected by other States in the effects that they produce,
when these, even if they occur in the territory of other States.
By studying and evaluating the provisions that exist in both international law and
the internal law of countries, we will aim to understand, interpret and apply the most
important aspects related to the jurisdictional immunity of States.

Domains
Upon completion of this chapter, the student will:
• It refers to the concepts of legal equality and State immunity.

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 • Explains the acts of States that are included within the so-called immunity.
• Indicates the manner in which jurisdictional immunity is exercised.
• Interprets the way in which International Law handles the theses referring to
equality and legal immunity.
• Understand how state immunity is applied in Mexican law.

Exercises and practices

Locate in the Charter of the United Nations all the precepts that refer to the
equality and jurisdictional immunity of States.
Consult the Bogotá Charter through which the Organization of American States
was established, and point out the precepts that refer to equality and state immunity.
Search for laws and rulings from Mexican courts in which the principles of
equality and jurisdictional immunity of the State have been mentioned.
Comment on the United Nations Convention on Jurisdictional Immunities of
States and Their Property of January 17, 2005. (Group activity).

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Basis of the immunity of sovereign states

Concept and doctrines relating to the jurisdictional immunity of the State.

European Convention on
Immunity
Jurisdictional
immunity of of the States
States

International regulation on United Nations

the matter Convention on
Jurisdictional
Immunities of States
and Their Property

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 Jurisdictional immunity in Mexican practice

I. Basis of sovereign state immunity

The international immunity of States finds its essential foundation in the
international principle of equality (par in parem no habet imperium)55. (54-60)
The above means that if States are equal, they have the same rights and
obligations in the international arena; none of them, without prejudice to their
independence and sovereignty, could intervene in the affairs of another State.
Thus, we have that immunity from jurisdiction is a direct result or -
consequence of the sovereignty of the State, which is an essential attribute of
the State. Sovereignty must be understood from two aspects: the internal
aspect, which consists of the free self-determination of the State to regulate its
internal political, legal, social and commercial organization; and the external
aspect, which translates into the independence and autonomy of the State in
its relations with other members of the international community.
Derived from the external aspect of sovereignty we can conclude in
three principles recognized by International Law:

• The equality of all States before International Law.

• Non-interference in the internal affairs of States.
• Immunity from jurisdiction of States.

55 There is no empire between peers

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 Immunity includes the State itself, its government, the entities that
exercise prerogatives of public power, as well as the objects used in the
exercise of such power and the State organs of international relations (head of
State, Minister of Foreign Affairs, diplomatic and consular agents, etc.).
The principle of foreign State immunity arises from a customary process
that originates fundamentally from the judicial practice of States from the
beginning of the 19th century. One of the first manifestations occurred with the
ruling issued by President Marshall of the Supreme Court of the United States
of America in the Shooner Exchange C Mcfaddon and Others case (1812).
This ruling recognises the immunity enjoyed by every sovereign State, which
could only be limited by its express or tacit consent. In this way, the basis of
immunity is the sovereignty of the States themselves.

II. Definition and doctrines relating to the jurisdictional immunity of the

State.
The immunity of a State from jurisdiction is defined as:
The right of the authorities of a sovereign political entity to be governed by its own
laws, to manage and dictate its own acts, with the duty of all other States to refrain
from intervening in the exercise of these rights56. (55-61)

It arises when a claim is filed before a national court against a foreign

State or against an organization dependent on it, or when there is a claim to
adopt a coercive measure (execution of a judgment against assets belonging
to a State, but located in the territory of another nation).
Traditionally, immunity was recognized in an absolute manner;
currently, it is granted in a restrictive manner; that is, establishing limits or
restrictions on its recognition.
Current doctrinal trends on State immunity are summarized by Chafic
Malek57 (56-62) as follows:

• One sector of the doctrine maintains that there is a universal and

56 Martinez Vera Rogelio, International Law, MCGraw Hill publishing house, Mexico, 1994 p. 50
57 Chafic Malek cit. by Ortiz Ahlf Loretta Public International Law 3rd Edition 2005 Oxford Mexico p. 177

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 fundamental principle of State immunity to which exceptions may be
made in certain circumstances.

• Another sector argues that there is no such general rule, but rather
various rules that allow state immunity in some circumstances and
not in others.

• A third sector maintains that while there may well be a general rule
regarding State immunity, it contains restrictions and exceptions.

These trends are based on the distinction between acts imperi and acts
gestionis.
Imperial acts are those that the State carries out in the exercise of its
sovereign power.
The administrative acts are those that the State carries out like any
other individual.
Based on the above classification, the State as a sovereign entity only
enjoys immunity with respect to imperi acts, since in the case of gestionis
acts, it will be subject to the jurisdiction of any State. As a result, the latter
constitute the circumstances in which immunity is not granted or the
exceptions or limitations to the general rule of State immunity.

III. International regulation on the matter.

As regards international regulation, the following conventions exist:

• European Convention on State Immunity, concluded under

the auspices of the Council of Europe and opened for
signature in Basel in 1972 (in force).

• United Nations Convention on Jurisdictional Immunities of

States and Their Property opened for signature at United
Nations Headquarters in New York on 17 January 2005 58. (57-
63)

58 Resolution adopted by the United Nations General Assembly A/RES/59/38 Fifty-ninth session 16 December
2004

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 This convention has as its antecedents the draft Articles on
Jurisdictional Immunities of States and Their Property, entrusted to the United
Nations International Law Commission as of December 19, 1977, with the
study of the subject having a progressive development in terms of its
codification that culminated in the convention referred to.
Among others, Article 5 of the Convention states:
Every State enjoys, for itself and its property, immunity from jurisdiction before the
courts of another State in accordance with the provisions of this Convention.

The way the aforementioned article is worded makes it clear that it shall
apply without prejudice to the immunity of the State with respect to its
diplomatic missions, its consular offices, its special missions, its missions to
international organizations or its delegations to organs of international
organizations or to international conferences and the persons assigned to
them.
This convention clearly expresses the modern tendency to focus on the
nature of the activity and not its purpose. Thus, if the act is of a commercial
nature, it will not enjoy the benefit of immunity, regardless of whether the
person who carries it out is part of the government or not or enjoys legal
personality of its own.
As regards limitations or exceptions to immunity, they are contemplated
in the third part of the convention and refer basically to the following aspects:

• Commercial transactions
• Employment contracts
• Injuries to persons and damage to property
• Ownership, possession and use of goods
• Intellectual and industrial property
• Participation in companies or other collectives
• Vessels owned or operated by a State.
• Effects of an arbitration agreement.

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 On the other hand, along with immunity from jurisdiction, we find
immunity from execution. The convention provides as follows59: (58-64)
Article 18. Prejudice measures such as attachment and execution may not be taken
against the property of a State in connection with proceedings before a court of
another State, except in the following cases and within the following limits:

a) When the State has expressly consented to the adoption of such measures,
under the terms indicated:
I. By international agreement;
II. by an arbitration agreement in a written contract; or
III. by a statement before the court or by a written communication after a
dispute has arisen between the parties; or
b) When the State has assigned or allocated assets to satisfy the claim that is the
subject of that process.

It should be noted that consent to the exercise of jurisdiction does not

entail consent to the adoption of coercive measures: separate consent is
required.
The assets that enjoy immunity from execution under the Convention
are the following60: (59.65)
Article 21
1. The following shall not be considered to be assets used or intended for specific
use by the State for purposes other than a non-commercial public service in
accordance with the provisions of section c) of article 19:
a) Property, including any bank account, used or intended to be used in the
performance of the functions of the diplomatic mission of the State or its
consular offices, its special missions, its missions to international
organizations or its delegations to organs of international organizations or to
international conferences;
b) Military assets or those used or intended to be used in the performance of
military functions;
c) The assets of the central bank or other monetary authority of the State;
d) Goods that form part of the cultural heritage of the State, or part of its
archives, and have not been or are not intended to be put up for sale;
e) Goods that form part of an exhibition of objects of scientific, cultural or
historical interest and have not been or are not intended to be offered for
sale.

Prior to this convention, some countries have made international efforts

to regulate this matter, including, among others, the United States of America,
Canada, the United Kingdom, Pakistan, Singapore, Argentina and Australia,

59 Article 18 United Nations Convention on Jurisdictional Immunities of States and Their Property opened for
signature at the Headquarters of the United Nations in New York on 17 January 2005.
60 Ibid., article 21.

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who have enacted their own legislation to define in which cases sovereign
immunity occurs.

IV. Jurisdictional immunity in Mexican practice.

Mexican practice is characterized by recognizing the jurisdictional
immunity enjoyed by States in accordance with the rules of Public
International Law on the matter. This immunity is granted for all acts carried
out by a foreign State in the exercise of its state power, in addition to covering
the assets of which said States are the owners and use in the exercise of
such power.
The Mexican State does not grant jurisdictional immunity in the
following cases:

• Claims in which the foreign State defendant voluntarily and

expressly accepts or has accepted the jurisdiction of the national
court hearing the case.

• Claims in which the foreign State does not expressly invoke its
immunity.
• Claims brought by the foreign State before a national court.

• Claims that do not refer to activities carried out by the foreign State
in the exercise of its sovereign power, but rather those of a private
person. For example, essentially commercial or civil activities,
lawsuits in the national territory, etc.

• Immunity is not granted to foreign States that do not reciprocally

recognize the jurisdictional immunity of the Mexican State in
disputes brought before their courts.

As can be seen from the above, the position adopted by Mexico is

restrictive in that it establishes exceptions to the general rule of immunity and
also requires, in order to be recognized, that the Mexican State has been
given reciprocal treatment.

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 CHAPTER SEVEN
INTERNATIONAL
RESPONSIBILITY OF STATES

Specific objective
Conduct a study of the origin of the State's international responsibility
and the elements that comprise it, as well as the actions of its bodies that
may give rise to conduct that violates the law and makes the State
responsible. At the same time, the forms that International Law admits as
excluding liability will be analyzed, as well as the sanctions that should be
applicable according to its own rules.
The topic in particular is highly topical due to the increasingly close
relations between States, and it is therefore common for conduct to arise that
violates the norms of International Law.

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Domains
Upon completion of this chapter, the student will:
* It determines that it is an international responsibility.
* Explain when and under what circumstances this liability may arise.
* It specifies which causes operate as exclusions of responsibility in
International Law.
* Identify the different assumptions that occur in matters of
international responsibility.
* Assess the different types of international sanctions.

Exercises and practices

Investigate some cases of international responsibility between States
where problems have arisen and which could be identified within the topic.
Conduct a similar investigation into Mexico-United States relations in
order to detect any conduct in which either country may have incurred liability
that would merit the application of any international sanction.
Present some fictitious cases for discussion in class in order to identify
international responsibility, exclusions and applicable sanctions such as
embargoes, economic blockades, etc.

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 (
Aim.
Elements of
responsibility
Subjectiv
e\

From the legislative body.

From the executive body.
From the judicial body.
Of its territorial entities.
Of a person or entity that is not part of the
very structure of the State. Of an organ
placed at the disposal of a State by another
State.
The fact of the Unauthorized and ultra vires acts of its
Constitutive State organs.
of responsibility Of persons acting under the direction or
control of that State.
Acts of persons who de facto exercise
prerogatives of that State.
From an insurrectional movement.
For damages suffered by foreigners due to
insurrections or civil wars of a triumphant
revolutionary group.
From a de facto government of a general nature.
International Acts that he recognizes as his own.
Responsibility

of States

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 Consent
Legitimate defense Countermeasures.
Circumstances Force majeure and fortuitous event.
excluding
the Extreme danger.
illegality of the The state of necessity

Restitution

Compensation
Presentation of excuses
Punishment of the person
Sanctions of
responsible for moral
International damage
Law Satisfaction < The judicial declaration of the illegality
of the act.
Satisfaction of a pecuniary
nature.
YO.
Introduction To speak of the international responsibility of the
State is to refer to a topic of current importance, since its emergence can be found at the
beginning of the 20th century. In previous centuries, the idea that the State could be
responsible was not accepted, which was consistent with the concept of the State, which had
been used since Bodin, Locke, Hobbes, Montesquieu and all the great theorists in the field.
The above is because, assuming that the State is sovereign, admitting its responsibility
was admitting that it had to respond to a higher order or entity for its unlawful and illegal
conduct. The concept of state irresponsibility results from a logical inference from the -
thinking of its own theorists. But it was at the beginning of the 20th century when the
authors Triepel and Anzilotti carried out studies in which they demonstrated that the
idea of sovereignty was not incompatible with the concept of state responsibility and
that, on the contrary, the basis of International Law consists in the State being
responsible for its illegal acts before the other members of the international
community.

The importance of the subject is reflected in the special attention that has been
given to it by the International Law Commission (ILC), created by the United Nations,
which was entrusted with the preparation of a draft codification of international

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standards on the subject. This commission has considered it appropriate to distinguish
between the liability arising from the violation of an international standard and the
liability arising from damage caused by ultra-risky activities.

II. Origin of the international responsibility of States.

The international responsibility of the State arises when there is a violation of
International Law. It must be understood as an action or, on the contrary, an omission
that is attributable to a State and, consequently, it is obliged to repair the damage
caused. This creates a legal relationship between the State that caused this violation
and the subject who has the right to claim compensation.
The State that violates the duties established by International Law itself,
causing harm to a State or an individual, incurs international61 responsibility. (60.66)
To this effect, Eduardo Jiménez de Aréchaga points out:
Whenever a duty established in any rule of International Law is violated, whether by action or
omission, a new legal relationship automatically arises. This relationship is established
between the subject to whom the act is attributable and who must respond through adequate
reparation, and the subject who has the right to claim reparation for non-compliance with the
obligation62. (61-67)

III. Elements of international responsibility.

Given the importance of the topic, it is important to follow up on the draft articles
on State responsibility for internationally illicit acts, the preparation of which was
entrusted to the International Law Commission (established by the United Nations
Assembly in 1947 to promote the progressive development of international law and its
codification). In this way, the origin of international responsibility, the foundations and
circumstances necessary for the existence of the international illicit act, the form and
degrees of international responsibility and the manner of making this responsibility
effective will be considered.
The draft articles provide that:

61 Sierra Manuel. Treaty on Public International Law. Porrua Publishing House. Mexico 1963. p. 189
62 Jimenez de Arechaga, Eduardo. International Responsibility in Max Sorensen, Handbook of Public International Law.
Mexico. Economic Culture Fund 1994. p.507

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 An internationally wrongful act of the State exists when there is behavior
consisting of an action or omission, and this is attributable to the State according to
International Law and constitutes a violation of an international obligation.
The commission encompasses the two constituent elements of the event
generating international responsibility. The first of these, considered as the subjective
element of the unlawful act, consists of the behaviour attributable to a State; the
second, called the objective element, involves the violation of an international
obligation of the State.

recognized that States as legal entities cannot act physically A. Target element
For an internationally illicit act to exist, it is necessary that the violation of an
international obligation occurs in the terms stipulated by International Law, therefore in
no case can the internal law of a State determine the illegality or legality of the act. As
regards the objective element for qualifying an act as unlawful from the point of view of
International Law, it is necessary that the obligation that said act contravenes be in
force at the time of the commission of said violation.
8. Subjective element
The subjective element arises when the illegal act is attributable to the State
according to International Law. The Permanent Court of International Justice in one of
its rulings states that they act only through their representatives and officials.
Three observations are made regarding this element:

• States as legal entities cannot act physically and therefore require people or
groups of people to act (through their agents and representatives).

• The State is the only relevant subject for International Law and not the
person as the center of duties and rights according to internal law.

• Under international law, individual conduct may be attributed to the State as

an unlawful act.

The objective and subjective elements of the unlawful act have been confirmed
by State practice, jurisprudence, and doctrine as essential requirements for the birth of

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international responsibility.
The international responsibility of States has traditionally been classified as
direct or immediate, when the damage comes from an act of the State itself through
any of its organs or entities that form part of it or of the individuals that are located in
its territory and indirect or mediate, when the State is responsible for the damages
caused in violation of international norms, by other States that are in a certain situation
of dependency as would be the case of agreements on trust administration in which
the administering State is responsible for the trust territory.
Nowadays, this classification tends to be overcome, since the trend is that this
responsibility must start from the fact or act that has given rise to an international
claim and that can be originated, as already mentioned, by the commission of illegal
acts or by ultra-risky activities.

IV. The Fact of the State

According to the draft of the International63 Law Commission (62-68), the
following are considered to be State acts:

• The behavior of any of its bodies, whether it be constituent, legislative,

judicial, or any other body in the organic structure of the State.

• The conduct carried out by any body of a territorial public entity.

• The behavior of an entity that is not part of the structure of the State itself or
of a territorial public entity, but which is empowered by internal law to
exercise prerogatives of public power.

• The conduct of bodies placed at the disposal of a State by another State or

by an International Organization, provided that said body has acted in the
exercise of the prerogatives of the public power of the State at its disposal.
• Unauthorized acts and utra vires of its organs

• The behavior of a person or group of persons who were not formally given
the authority to function as organs of the State, but who in fact act on behalf
63 Draft Articles on State Responsibility for Internationally Wrongful Acts, adopted by the International Law Commission
at its fifty-third session (A/56/10) and annexed by the General Assembly in its resolution 56/83 of 12 December 2001

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 of the State itself or exercise prerogatives of the public power that
corresponds to them.

• The behavior of an insurrectional movement that becomes the new

government of a State or the behavior of an insurrectional movement that
gives rise to the creation of a new State
• The behavior that the State recognizes and adopts as its own.

V. State responsibility for acts of its organs

Since States can only act through individuals, the question arises as to what
human behavior can be attributed to the State. This question is usually answered by
saying that under international law, States are only responsible in principle for the
behavior of their organs and not for the acts of their subjects or members64. (63-69)
International law allows internal legal systems to determine which persons and
under what requirements are to be considered organs of the State, except in the
following cases:

• When International Law directly determines the persons who are to be

considered as organs of the State.
• When certain persons do not have the status of organs of the State under
domestic law, but exercise power in an exceptional and effective manner in said
State, in such case International Law considers them to be organs of the State.

A. From the legislative body

This liability may arise either from the enactment of legislation that is
incompatible with its international obligations or from the lack of legislation necessary
to comply with such obligations, that is, the acts of the legislative body may be by
commission or by omission.

• By action.- Responsibility is updated when the legislative body enacts a law

contrary to the State's international obligations and it is applied, causing direct
damage to another State or States.

64 Op. Cit. note 34, p. 302.

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 • By omission.- It may arise under two circumstances: when the legislative body
does not enact the laws necessary for the fulfillment of its international
obligations and it is the only means of fulfilling an obligation contained in a
treaty, or when it does not repeal a law contrary to said obligations.

B. From the executive body

In practice, the responsibility of States for administrative bodies is more
frequent, since these by their very nature carry out acts contrary to International Law
or fail to carry out acts imposed by it, for example the pursuit of a criminal in foreign
territory, the incursion of the police into the building of a diplomatic mission, etc. The
commission of these acts can be carried out by State officials at various levels: head
of government, minister, executive or administrative agents or any other official.
The State is not responsible for the mere fact that an administrative body
causes harm or damage to a foreign State, unless the damage has been caused by
an act that is unlawful under international law.

C. From the judicial body

The principles of separation and independence of the judiciary in domestic law
led to the consideration in classical International Law that a State was not responsible
for the acts of its courts since, being absolutely independent of the government, the
latter should not exert any influence on its decisions. However, at present, the acts of
the judicial power of a State entail liability for that State when they are contrary to its
international obligations. Even though the judiciary is considered to be independent of
the government, it is not independent of the State, which is responsible for the conduct
of all its organs.
A breach of an international obligation may be committed by a higher or lower
court in order to give rise to State liability; but if the conduct of a lower court gives rise
to such liability, domestic remedies must be exhausted before attempting an
international claim.
Loretta Ortiz Ahlf establishes precisely the way in which the judicial body

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commits an international crime and points it out as65 follows: (64-70)
International law and domestic law are violated at the same time, for example: a duly
promulgated international treaty is misapplied, or an international custom also recognized in
domestic law is violated.

A rule of international law is violated without violating a provision of domestic law. Example:
when a law is applied that is manifestly contrary to International Law; and

In exceptional cases and in clearly defined circumstances, international law sanctions the
application or violation of provisions of internal law. Example: Denial of justice.

The term denial of justice was initially considered to mean restricting foreigners'
access to justice in the courts; currently there is a tendency to broaden the concept to
include other acts such as manifestly unfair and biased rulings.
In accordance with the above, denial of justice includes:
Denial of Justice stricto sensu.
. Which consists of preventing access to the courts for the administration of
justice.

Defects in the administration of justice.

. The court's refusal to issue a ruling.

• Any inexcusable delay or obstruction in the administration of justice when

the plaintiff is a foreigner.
• Any lack of diligence in the pursuit or arrest of the murderer of a foreigner

• The unusual haste in judging a foreign defendant

• The conviction of a foreigner by an exceptional court.

• Non-execution of a court ruling issued in favor of a foreigner.

• The lack of guarantees generally considered essential for the proper

administration of justice.

The manifestly unfair ruling

It is considered unfair in the following circumstances:
. The decision must constitute a flagrant and inexcusable violation of
65 Op. Cit. Note 1, p. 151

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 domestic law.
. It must be a decision of a court of last resort, after all available
remedies established under domestic law have been exhausted.
. There must be a subjective element of bad faith or discriminatory
intent on the part of the courts, that is, it must be proven that the court
has acted with bias, fraud or under external pressure.
.

The State shall not be liable for simple errors of the courts when they are
committed in good faith, which may include the erroneous application or interpretation
of a precept or the violation of a rule of internal law.

The State must guarantee access to the administration of Justice, not its
infallibility.

D. Of its territorial entities

The codification project contemplates the conduct of any State body under
International Law, whether it belongs to the central government or to a territorial
division thereof.
In accordance with the above, acts of State carried out by federal entities or
municipalities in the case of States constituted in a federation are considered to be
acts of State. Also included are those territories under the jurisdiction of the State,
such as countries that have territories under their administration.

E. Of a person or entity that is not part of the very structure of the State
According to Article 5 of the draft, the conduct of a person or entity that is not an
organ of the State but is empowered by the law of that State to exercise powers of
public power is considered an act of State under international law, provided that, in the
case in question, the person or entity acts in that capacity.

F. Of an organ placed at the disposal of a State by another State

Article 6 considers as an act of State the behavior of an organ placed at the

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disposal of a State by another State or by an International Organization, provided that
this organ acts in the exercise of the powers of the public power of the State at whose
disposal it is placed.

G. Unauthorized acts and Ultra Vires of its organs

International practice establishes the responsibility of the State for the unlawful
acts of its organs even when these acts are carried out outside the limits of its
competence and are contrary to domestic law.
It should be noted that the State is not responsible for the acts or omissions
committed by individuals who have organ status when they act privately. The decisive
factor is to determine whether the agent acted beyond the scope of his powers and
whether he appears to others as an organ of the State by invoking such character.

H. Of persons acting under the direction or control of that State

According to Article 8 of the draft, the State is considered responsible under
international law for the unlawful act when a person or group of persons act in fact on
the instructions or under the direction or control of that State when observing a certain
behavior.

I. Of persons who de facto exercise prerogatives of that State.

Article 9 of the aforementioned project considers the behavior of a person or
group of persons to be an act of State if he or she actually exercises powers of public
power in the absence or default of official authorities and in circumstances that require
the exercise of such powers.
It should be noted that in order to attribute such behavior to the State, the
commission considers it essential:

• That the persons in question effectively exercise prerogatives of public

power.
• That this behavior is adopted due to the absence of official authorities.

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 • That there are circumstances that justify the exercise of said prerogatives.

J. From an insurrectional movement.

On the other hand, Article 10 considers the following as a State act according
to International Law:
. The behavior of an insurrectional movement that is
become the new government of the State
. The behavior of an insurrectional or other movement that succeeds in
establishing a new State in part of the territory of the pre-existing State or in a
territory subject to its administration. In this case it will be considered a fact of
the new State according to International Law.

It is worth noting that if the acts or omissions that violate a rule of international
law are those of an insurrectional movement that has not achieved success, they are
not imputable to the State provided that it has acted with due diligence, that is, trying
to avoid such acts and, if this is not possible, punishing those who caused the
damage. In short, taking the necessary prevention and sanction measures.

K. For damages suffered by foreigners due to insurrections or civil wars

This issue has been widely discussed in terms of whether the State has
responsibility in the event of insurrections and civil wars. The dominant doctrine and
international jurisprudence are in favour of irresponsibility as a general rule,
considering civil wars as cases of fortuitous events or force majeure, which eliminates
the existence of an illicit act, but this explanation in itself is not satisfactory. The lack of
responsibility of the State in the case of insurrections or civil wars is due to the fact
that it is not possible to impute the illicit conduct of the insurgents to the State, since if
this were the case we would be considering the main victim, which is the legitimate
government, responsible.
Currently, the four basic principles that govern the responsibility of the State for
the consequences of insurrections and rebellions are the following:

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 • A State in whose territory an insurrection occurs is only liable for loss or
damage suffered by a foreigner if it can be shown that the government of
that State was negligent or erred in employing the forces at its disposal for
the prevention or suppression of the insurrection.

• A State is only liable for damage resulting from military operations directed
by its legitimate government, when the damage was intentional or
unnecessary.

• A State is not responsible for damage or loss caused by insurgents to a

foreigner after the latter has recognized the belligerence of the insurgents,
and

• A State may usually assert a claim in respect of loss or damage suffered by

foreign residents if it is shown that they have not received the same
treatment in the way of protection or compensation as its own nationals.

L. For acts of a triumphant revolutionary group

The principle of non-imputability of the State for the conduct of the organs of an
insurrectional movement is modified in the event that this movement achieves its
objectives, which may be to form a new State government or to constitute a new
State. In such cases, a new rule arises, according to which the conduct of the organs
of said movement will be attributed to the State from the very moment in which it
originated.
This rule has been applied by arbitration jurisprudence. The basis for this does
not lie in the fact that during the conflict the insurgents exercised their authority as a
de facto government over the territory they controlled, but in the continuity between
the organization established by the insurgents and the organization they established in
the State, once victory was achieved.
Successful insurgents are not only retroactively responsible for their own acts,
but also for those of the previous legitimate government, in accordance with the
principle of the continuity of the personality of the State. But there is a limit to this
responsibility in terms of transmission and obligations: The insurgent group is not
responsible for the debts and obligations contracted by the previous legitimate

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government to deal with the insurrection.

M. For acts of a de facto government of a general nature

The State is responsible, according to International Law, for the acts of those
bodies that came to power thanks to a coup d'état or a revolution, provided that it is a
matter of domination that has been imposed throughout its territory, unlike
belligerence, in which case the domination must exist effectively only in part of it.
It may happen that the administrative and judicial bodies established by the
constitutional government may continue to exist even when the said government has
been displaced. In such a case, the State's responsibility can only arise from the
conduct of these bodies, since it continues to function within them even if a new
central authority capable of binding the entire State internationally has not yet been
established.
International responsibility is not affected by the fact that the de facto
government of a general character has not been recognized by the injured State.
N. That recognizes and accepts as one's own.
Article 11 of the draft provides that conduct not attributable to the State by virtue
of the above responsibilities shall nevertheless be considered an act of that State
under international law if and to the extent that the State recognises and adopts such
conduct as its own.

VI. Violation of an international obligation

In the drafting of the project in article 12 thereof, it is stated that:
There is a violation of an obligation by a State when an act of that State is not in conformity
with what that obligation requires of it, whatever its origin or nature.

An international obligation may arise from a treaty, custom or any other source
of international law, and it is essential for establishing international responsibility that
the obligation be in force.
In the draft articles approved in its first reading, the International Law
Commission distinguished between two types of violations of international law: some

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that involved the commission of an international crime and others that constituted
international crimes.
In the case of an international crime, the Commission noted that an obligation
that is essential to safeguarding the fundamental interests of the international
community would be violated and that this violation would be recognized as a crime by
the community as a whole.
In relation to the above, the following facts would be relevant in international
crimes:

• Violation of an essential obligation for the safeguarding of fundamental

interests of the international order
• The existence of serious damage

• The impact extends to the international community as a whole and not to

any specific State, therefore no State is authorized to take individual
measures as this would lead to an anarchic system.

By exclusion, all violations of international law that were not international crimes
would be international crimes.
Considering international crimes as a violation of Ius Cogens, we would have a
hierarchical difference between crimes and offences both based on the rules violated
and the damage caused.
In the case of international crimes, according to the draft, a violation erga
omnes always constitutes a violation, and in which case this violation of an
international obligation would authorize subjects other than the State directly injured to
claim international responsibility for that violation, while in international crimes only the
State directly injured in its legal interests would be authorized to claim responsibility
from the State that committed that internationally illicit act.
On this distinction made by the commission, two opinions were presented, one
in favour and one against the distinction established in article 19 of the draft
convention, in which the distinction is made between international crime and
international offence, arguing that there cannot be two different categories of violations

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of international norms.
Unfortunately, this valuable distinction was abandoned and the following was
established in Article 26 of the project:
Nothing in this Chapter shall exclude the unlawfulness of any act of a State which is not in
conformity with an obligation arising from a peremptory norm of general international law.

Article 40 is also incorporated into the project, which provides:

This Chapter shall apply to international responsibility arising from a serious breach by a State
of an obligation arising from a mandatory norm of general international law.
A breach of such an obligation is serious if it involves a flagrant or systematic failure to fulfil the
obligation by the responsible State.

In conclusion, it is established that there is international responsibility of States

when they contravene a mandatory rule of general International Law, which they are
obliged to comply with.

VII. Circumstances excluding the illegality of the act

The draft codification of international norms on the international responsibility of
States mentions the circumstances that exclude the illegality of an act, referring to
consent, countermeasures, unforeseen circumstances and force majeure, external
danger, state of necessity and legitimate defence.
When any of the above circumstances arise, the State does not have to
observe the international obligation that it should normally respect.
In these cases, the objective element is not present and, therefore, there is no
room for discussion of international responsibility.
A. Consent.
The valid consent of a State to the commission by another State of a given act
excludes the wrongfulness of that act in relation to the first State to the extent that the
act remains within the limits of such consent.
In order for this consent to render the international obligation in question
ineffective, it is essential that it meets certain requirements:

• It must be validly loaned.

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 • It must be clearly stated.

• It may be prior to or even subsequent to the commission of the act to which

it refers.

As an exception, consent will not operate as a cause excluding illegality in the

event that international obligations arising from norms of ius cogens are enforceable.

B. Self-defense.
The illegality of a State's act is excluded if that act constitutes a lawful measure
of legitimate self-defense taken in accordance with Article 51 of the Charter of the
United Nations, which establishes:
Nothing in this Charter shall prejudice 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 measures necessary to maintain international peace and security. Measures taken
by Members in the exercise of the right of self-defence shall be immediately communicated to
the Security Council and shall in no way affect the authority and responsibility of the Council
under the present Charter to take any action it deems necessary at any time to maintain or
restore international peace and security.

The other exceptions to the principle of not resorting to the use of force against
the territorial integrity or political independence of a State established in the Charter of
the United Nations are the military measures that the Security Council may exercise in
the event of threats to international peace and security, and measures aimed at
exercising the right to self-determination of peoples.
For legitimate defense to operate as an exclusive cause, the following
requirements are required:

• Attacks by a third state

• The measures of legitimate defense must communicate

immediately to the security council

• These measures should not affect in any way the

authority and responsibility of the Security Council to take the necessary
measures to maintain international peace and security.

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C. Countermeasures.
They are traditional measures of coercive application of International Law, as
well as retaliation, which embody the classic idea of a proportionate response by an
injured State to the illicit actions of another State that has infringed its rights.
These countermeasures must be proportionate, since they constitute a penalty
for the violation committed. Under normal circumstances, these reprisals or
countermeasures would constitute an unlawful act, but when they become a means of
punishment, they lose their unlawfulness.
According to Articles 49 to 51 of the draft, countermeasures must:

• Induce the State responsible for the illegal act to comply with its
international obligations.
• Limit its application until the non-compliance of the responsible State
ceases.
• Be adopted in a manner that allows the resumption of compliance with
said obligations.
• Be proportional to the damage suffered.

They do not exempt the State that employs them from the following obligations:

• Refrain from resorting to threats or the use of force.

• Protect human rights.

• Observe humanitarian obligations prohibiting reprisals.

• Observe the mandatory rules of general international law.

• Respect the inviolability of local agents, archives, and diplomatic

and consular documents.

D. Force majeure and fortuitous event

The draft law provides that the unlawfulness of an act by a State that fails to
comply with an obligation of that State is excluded if that act is due to force majeure,
that is, to an irresistible force or an unforeseen event beyond the control of the State
that makes it materially impossible, in the circumstances of the case, to comply with

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the obligation.
For force majeure or fortuitous event to operate as exclusive circumstances, the
commission considered the following:

• That the irresistible force or unforeseeable external event is of such

magnitude that it is materially impossible for the State to adopt behavior in
accordance with the international obligation.
• That the external event in question is not foreseeable

• That the State alleging fortuitous event or force majeure has not
intentionally or negligently contributed to the occurrence of the
circumstance in question.

The fortuitous event or force majeure is different from extreme danger and the
State of necessity in that in these latter circumstances the State has a choice between
two or more behaviors, although its freedom to choose is limited, in the first case by
the danger that the individual-organ of the State or the people under its care may
suffer and the

Second, because of the danger it may represent to a fundamental interest of the

State. On the contrary, force majeure and fortuitous events make it materially
impossible for the State to fulfill its obligation.

E. The extreme danger

In Article 24 of the draft, the International Law Commission regulates the
situation of extreme danger as a circumstance excluding the illegality of a State's act.
It operates if the perpetrator of that act has no reasonable alternative way, in a
situation of extreme danger, to save his life or the lives of other people entrusted to his
care.
In the case of extreme danger, certain conditions must be met for the excluding
circumstance to be operative:

• The behavior chosen by the State body, although illegal, must be the only

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 possible one to achieve its objective: saving lives.
• The behavior must not create a danger comparable to or greater than that
which it is intended to avoid, and the interest sacrificed must be of lower
rank than that which it is intended to protect.
• This must be an extreme situation.

• The State invoking it must not have intentionally or negligently contributed

to creating the dangerous situation.

This exclusion will not apply when the individual-organ of the State itself has
caused said situation.

F. State of need
The International Law Commission understands a state of necessity as a freely
and voluntarily adopted behaviour by an organ of a State that violates the rights of
another State with the aim of safeguarding an essential interest of the former
threatened by a grave danger.

Roberto Ago defines the State of necessity as follows:

In positive international law, the state of necessity is strictly limited to hypotheses in which
there really exists an imminent and serious danger to the very existence of the State, not
caused by the State itself, and which cannot be avoided by any other means.66 (65-71)

The International Law Commission responsible for drafting the draft establishes
the following as necessary conditions for this circumstance excluding illegality to
operate:

• That the interest of the State that is threatened by a grave and imminent
danger is effectively essential for the State itself.

• That the State's behavior has been the only means to save the threatened
essential interest
• That the interest sacrificed by the violation of an international obligation in
these circumstances is not an essential interest of the injured State.

66 Op. Cit. Note 1, p. 167

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 The Commission considered it appropriate to exclude its application in cases
where the conduct is contrary to a norm of ius cogens, when a treaty expressly or
implicitly prohibits the application of the circumstance and when the State alleging the
state of necessity has provoked said situation with its conduct.

VIII. State responsibility for acts not prohibited by

international law.
In addition to liability for unlawful acts, in recent years a different project has
been proposed: liability for the harmful consequences of acts not prohibited by
international law. The International Law Commission initially focused on activities
arising within the jurisdiction of a State that are likely to cause harm beyond the
borders of that State.
This liability regime can be considered exceptional in the sense that it only
arises when the lawful activities carried out are risky and therefore it must be
considered that with these activities, no matter how rigorous the precautionary and
safety standards are, the possibility of causing serious damage still exists.
Since this is a regime of objective liability, it is the State responsible that must
provide evidence to demonstrate that its activity was not the cause of the damages
caused, otherwise it would have to repair the damages and losses.
In positive international law there are no rules relating to objective liability in a
generalised manner, not even in practice that could give rise to the formation of a
custom in that sense. Rather, objective international liability currently has the
character of a specific and exceptional regulation - by reference to the regime of
classical international liability - provided for in international conventions on matters
related to the physical environment, technical and industrial advances, advances in
atomic energy and the use or utilization of outer space.

IX. Reparation for breach of an international obligation.

It has traditionally been held, and this is reflected in international practice, that
the State that committed the illegal act will be subject to a new obligation. The
obligation to make reparation to the injured State.

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 The modalities of reparation may consist of restitution, compensation or
satisfaction.
The Permanent Court of International Justice has established in the case of the
Chorzów factory that:
Reparation must, to the extent possible, erase all the consequences of the unlawful act and
restore the situation that would in all likelihood have existed if the act had not been
committed.67 (66-72)

A. Restitution
Restitution in kind is considered the means of reparation par excellence. It
essentially translates into the effective reestablishment of the situation that should
have existed had the unlawful act not occurred.
Restitution in kind has taken various forms and may involve actions such as the
restitution of unduly confiscated property, or the abrogation or repeal of legislative
measures, or the annulment or non-execution of a judgment issued by a national court
in contradiction of an international obligation.
Even though restitution in kind is theoretically the mode of reparation that
should prevail, there are very few cases in which it operates, due to the material legal
impossibility of returning things to the state they were in.
International law grants the offending State the right to refuse natural restitution
and to compensate with compensation of equal value if the demand to restore the
previous situation constitutes an abuse of law. This case arises when restitution is
requested, even though equivalent compensation has been offered and returning to
the previous state entails disproportionate costs.

B. Compensation
Compensation for damages is a form of reparation that is available whenever
restitution in kind is not eligible, or when there is an agreement between the parties.
This method of reparation is also applicable in the very frequent case in which the
consequences of the illegal act cannot be fully compensated by resorting solely to the

67 “Affaire relative to I'Usine de Chorzów (demande en indemnité) (fond)”, Recueil des arréts, avis consulatifs et
ordonnances de la CPJI (RAAOCPJI), SERIE a Núm. 17, September 13, 1928, pp. 5 and 18.

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form of restitution in kind.68 (67-73)
Compensation is available in the following circumstances:

• When restitution in kind cannot be granted.

• When there is an agreement between the parties

• When the consequences of the unlawful act cannot be fully compensated

by resorting to the form of restitution in kind.

Some authors consider that damage is not repaired, only when it is

compensated or can be partially restored and only what cannot be remedied will be -
compensated. However, compensation for damages is reduced proportionally when
the injured party is partly to blame (compensation for guilt) or when the unlawful act
has resulted in certain advantages for him (compensation for profit).
It should be noted that it is not essential that the damage has occurred in order
for compensation to be claimed; a certainty that it will occur is sufficient. For example,
the future harmful consequences that are certain to result from nuclear radiation and
which grant the right to compensation even before the damage has occurred.

C. The satisfaction
In accordance with the practice of States in International Law, satisfaction has
been recognized as a form of reparation for an unlawful act, and may be presented
concurrently with the other two forms of reparation when it is necessary to remedy the
consequences of unlawful conduct.

This form of reparation is appropriate for remedying non-material damage

caused to the dignity of a State.
The forms of satisfaction in contemporary practice may consist of the
presentation of apologies, the punishment of the person who caused the moral
damage, the judicial declaration of the illegality of the act and monetary satisfaction.

68 GUGGENHEIM, PAUL, Traité de Droit Internacional Public, Genéve, Georg, 1954, vol. II pp. 68 and 69 cited by
Gómez Robledo Alonso, in Selected Topics in International Law, IV ed. UNAM, 2003 p.187

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1. Presentation of excuses
This is a form of satisfaction that has been mostly used in international
relations. It consists of apologies through multiple means and procedures ranging from
a letter of regret and apologies by the responsible State to tributes paid to the flag or
other emblem of the offended State. As a typical way of granting satisfaction for
reparation of moral damage.

2. Punishment of the person responsible for moral damage.

Satisfaction may be presented in the form of the imposition of punishment on
the individual who has caused the liability attributable to the State by the omission of
measures that it should normally have adopted.

3. The judicial declaration of the Illegality of the act

Some authors consider that the judicial declaration of the illegality of the act, not
accompanied by any additional form of reparation, should be considered as another
way of granting satisfaction to the State that has suffered damage of a "political-moral"
nature.

4. Satisfaction of a pecuniary nature

This should not be confused with compensation but rather as satisfaction or a
moderate form of sanction to induce the government that committed the illegal act to
improve its administration of justice and should be classified as satisfaction because it
does not imply direct reparation for the damage caused.
The fundamental criterion for determining the extent of compensation must be
proportional to the nature of the obligation violated and, where applicable, to the
damages caused; however, general practice has shown that the criterion of calculating
compensation according to the damage suffered prevails rather than the violation of
the obligation.
Finally, it should be noted that the different forms of reparation are not mutually
exclusive, and may therefore occur together.

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 CHAPTER EIGHT
PEACEFUL MEANS OF RESOLUTION OF
INTERNATIONAL DISPUTES AND SANCTIONS OF PUBLIC
INTERNATIONAL LAW.

Specific objective
This chapter will study all aspects related to the forms and procedures
contemplated in International Law for the peaceful solution of disputes that arise
between States belonging to the international community, with the fundamental
purpose of avoiding any form of violence as a way of resolving conflicts. Diplomatic
means such as negotiation, good offices and mediation will be examined, as well as
commissions of inquiry and the conciliation procedure. As for legal means,
international arbitration and proceedings before the International Court of Justice will
be analyzed.

Domains
Upon completion of the study of this topic, the student will:
* He estimates the importance of resolving conflicts through peaceful means.
* Distinguishes each of the means provided by International Law for the
resolution of disputes.
* Explains both the arbitration procedure and the jurisdiction of the
International Court of Justice.
* Assesses the scope of the decisions issued in previous instances.

Exercises and practices

Investigate and give your opinion on any recent case in which there has been a
diplomatic solution to an international conflict.

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Analyze a case in which Mexico has provided its good offices to resolve an
international conflict.

Locate the text of the Inter-American Convention on International Arbitration

and summarize the main aspects of this convention.

Study the ruling issued by the International Court of Justice in the Avena case
and hold a debate on the topic (group activity).

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 Introduction

The
negotiation.
Good offices and
mediation.

Diplomatic means The

commissions of
inquiry.

The conciliation
procedure.

Peaceful
means of settling
International
international disputes arbitration.
and sanctions under Legal means of Contentious
public dispute resolution procedure
international law Procedure before the Advisory
International Court of procedure
Justice

Retortion.

Peaceful retaliation.
Sanctions of Public
International Law. Legitimate defense

Self-protection.

YO.
Introduction

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 Contemporary International Law has among its essential characteristics
that of being a law of peace. A right that, from 1928, the year in which the
Brian-Kellog69 Treaty (68-74) was signed, outlaws war as a means of
resolving disputes. Before this treaty, the most that international law could do
was regulate wars, try to humanize them, but not prohibit them. Proof of this is
that not even the Treaty of Versailles that ended the First World War
contemplated this as part of its purposes.
Currently, contemporary international law only allows the use of force
as a means of conflict between States in exceptional cases. In return, it
presents a series of possibilities or means for the subjects of International
Law to resolve their disputes.
Following the postulates of the Brian-Kellog Pact, the Charter of the
United Nations establishes:

The Members of the Organization shall settle their international disputes by peaceful
means in such a manner as not to endanger international peace and security and
justice70. (69-75)

This obligation extends even to non-member States of the

Organization, as established in the aforementioned article.

The Organization shall cause States not Members of the United Nations to
conduct themselves in accordance with these principles to the extent necessary for
the maintenance of international71 peace and security. (7076)

Furthermore, Article 33 of the aforementioned Charter states the

following in relation to the means for resolving disputes:

The parties to any dispute, the continuance of which is likely to endanger the
maintenance of international peace and security, shall seek a solution first of all by
negotiation, inquiry, mediation, conciliation, arbitration, judicial settlement, resort to

69 Signed in Paris on August 27, 1928 by fifteen countries at the initiative of the governments of France and the
United States of North America. It was subsequently ratified by 57 other countries.
70 Charter of the United Nations, art. 2°, parr. 3
71 Ibid., par. 6

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 regional organizations or arrangements, or other peaceful means of their own
choice72. (71-77)

Thus, currently only the peaceful means of resolution contained in

Article 33 of the aforementioned Charter are considered lawful.
In relation to the peaceful resolution of disputes, the doctrine has made
a division between legal differences and political differences. It is noted that
the former are resolved by applying the current law, and their knowledge
corresponds to jurisdictional bodies; on the other hand, the latter are based on
a claim whose problems exceed legal limits, and their solution corresponds to
the United Nations Security Council.
This distinction made by the doctrine should not be applied in a
categorical manner, since most conflicts bring together elements that contain
both a political nuance and a legal dimension. This is reflected in the separate
opinion in the judgment issued by the International Court of Justice in the
case of Nicaragua v. the United States, in which the Polish judge Manfred
Lachs stated with conviction that “all disputes arising between States have
both legal and political aspects ［…］”.73 (72-78)
Thus, we have that the doctrinal classification takes into account the
nature of the means as indicated in article 33 of the Charter of the United
Nations. These can be classified as diplomatic means and legal means of
dispute resolution.
II. Diplomatic Media
The diplomatic means to resolve conflicts at an international level are:
negotiation, good offices, mediation, investigation and conciliation.

A. The negotiation
It is one of the most common and effective methods for resolving international
conflicts. It consists of direct discussion between the parties to a conflict to

72 Ibid., art. 33° parr. 1

73 BECERRA RAMIREZ, Manuel, “The role of the International Court of Justice in the resolution of
disputes (case of Nicaragua vs. The United States) Mexican Bulletin of Comparative Law, new series, year 20,
no. 60, Mexico, September-December 1987, p. 844.

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resolve their differences.
Negotiations begin when the parties intervene through their diplomatic
bodies and start the respective discussions until they reach a peaceful
settlement. It can take several forms; it can be carried out in international
organizations or at international conferences as long as the contact between
the States is direct.
It has its advantages and disadvantages, the first being that: direct
contact between the parties in conflict tends to smooth out rough edges or
mistrust and eliminates all types of external pressure. As for the latter, it often
happens that in many cases negotiations are not possible between countries
with different economic or military levels, since the weaker nation may be
subject to pressure from the stronger nation.
As regards the form of negotiations, there is no special procedure, and
the Hague Convention for the Peaceful Settlement of International Disputes of
1907 does not even refer to such a means of settlement.

B. Good offices and mediation

Good offices and third party mediation are designed to make
negotiations between the parties to the dispute viable when they are tense or
even broken down.74 (73-79) They consist of the good-will participation of one
or more States in order to invite the parties in conflict to reach an agreement.
The distinction between both procedures is clear and depends on the
functions assigned to the third party in each case.
Good offices represent the most modest degree of intervention. The
third, that is, the States or the State that provides them, is limited to exercising
its moral or political influence to establish or reestablish relations between the
parties in dispute and thus facilitate direct negotiations between them,
concluding its mission when such purpose is achieved.
Mediation means taking a step further in the functions assigned to the
third party. As in good offices, its first mission is to bring the parties together

74 Op. Cit. Note 17, p. 836

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and propose the bases for negotiation and intervene in it as a means of
communication, suggestion and adaptation of positions, without trying to
impose a solution, but only to propose specific solutions in this regard that the
parties may accept or not.
The essential difference with good offices consists in the active
participation of the mediator in the development of the negotiations until their
effective conclusion, which may result in a solution to the controversy or in the
determination of another method of settlement.
Good offices and mediation may be requested by the interested States
or offered by the third party without this constituting an act of intervention in
the internal affairs of the States, but rather considered as friendly acts, as
specified in the Hague Convention of 1907.
The functions of the third party cease as soon as it is proven that his
intervention is rejected by any of the parties to the dispute; clear proof that
this occurs in the case of the mediator is established by the Hague
Convention of 190775 (74-80).
The functions of the mediator cease as soon as one of the parties in dispute or the
mediator has stated that the means of conciliation proposed by the latter are not
accepted.

Both good offices and mediation, without being binding, play an

auxiliary role in the search for an agreement between the parties and have
achieved important successes. To cite just a few that have been significant,
we can mention the good offices of France in the Vietnam conflict, which
contributed to the signing of the Paris Treaty in 1940; that of the United States
in establishing the bases of the peace process in the Middle East (Camp-
David agreement in 1978), which led to the Peace Treaty between Egypt and
Israel (1979).

C. Commissions of Inquiry
This method of peaceful settlement is aimed at obtaining an impartial

75 Hague Convention of 1907, art. 5°

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and detailed knowledge of the facts that gave rise to the controversy. It
consists of an expert opinion that is normally entrusted to a collegiate body
called a commission of investigation, survey, or determination of facts, and its
purpose is to establish the factual assumptions of the controversial case
without actually proposing a solution to the conflict.
The proposal to create commissions of inquiry arose at the Hague
Conferences of 1899 and 1907 for those international controversies which,
arising from a divergence of appreciation on points of fact, did not
compromise either the honour or the vital interests of the parties.
The Convention itself indicates the mission of the commissions referred
to: “To facilitate the solution of these disputes, clarifying through an impartial
and conscientious examination the questions of fact.”75 (75-81)

These commissions are established by prior agreement between the

interested parties and operate in accordance with the criteria indicated by the
aforementioned 1907 Convention, among which the following are noted:

• The investigation will be contradictory in nature

• The commission has the power to temporarily move to the places it

deems appropriate.
• The commission may request from the parties any explanations or
reports it deems necessary.
• The parties undertake to provide all necessary facilities to the
commission for the exercise of its functions.
• The deliberations will be secret.

• The commission's report will be read in a public session in the

presence of the counsellors and agents and will be limited to
verifying the facts, which is why it does not have the character of
an arbitration award.
This method of settling disputes combines the advantages of diplomacy
and legal techniques to provide an impartial report of the facts that is not

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binding on the parties, leaving them entirely free to assume their own
consequences regarding the effect that will be given to the Commission's
report.

D. The Conciliation Procedure

Pastor Ridruejo defines conciliation as: “a means of resolving
international disputes characterized by the intervention of an impartial third
party – the conciliation commission – which is subject to examination of all the
elements of the dispute – investigation of the facts, applicable rules of
International Law, factors of political opportunity – 75 Ibid. Art. 9°

to propose a solution – materialized in a report – based on those elements, a

proposal that is not binding on the parties."76 (76-82)

Conciliation is a process instituted by the parties themselves in the

event of a dispute. It is a step beyond the investigative commissions, since
the conciliators not only investigate the facts that generated the dispute, but
also suggest a viable solution.
Conciliation arose as a result of the Bryan Treaties signed in the United
States and some Latin American countries in 1914. These treaties established
a cooling-off period that obliged the States Parties not to resort to any type of
hostile means until the report of the Conciliation Commission had been made
public. That "cooling off" period, says César Sepúlveda, was quite practical
because many of the controversies end when there is an opportunity for the
contenders to reconsider.
Later, the Bryan Treaty technique was improved and permanent
conciliation commissions were created.

International conciliation is regulated by a number of bilateral and

76 PASTOR RIDRUEJO, JOSE A. International Course Public and International Organizations, 5th edition,
Ed. Tecnos, Madrid 1994. p. 583

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multilateral treaties, including the General Act for the Settlement of
International Disputes adopted by the General Assembly of the League of
Nations on September 26, 1928 and revised by the General Assembly of the
United Nations on April 28, 1949.
This act establishes that any type of controversy may be submitted to a
conciliation procedure.

The conciliation procedure will be adversarial and its mission will be to

clarify the issues in dispute, so that all necessary information is collected. This
procedure ends with a record in which it is stated whether or not the parties
reached an agreement, and the conditions thereof, if any. The minutes are
then submitted to the parties who decide whether they agree with them and
approve their publication.
The conciliation procedure has no binding force for the parties, which is
why the use of this method is not common nowadays.

III. Legal means of dispute resolution.

A. International arbitration.
In international law, arbitration is an institution intended for the peaceful
solution of international conflicts, and is characterized by the fact that two
States in conflict submit their difference to the decision of a person (arbitrator)
or several persons (arbitration commission) freely assigned by the States, and
who must resolve based on the law or the rules that the parties agree to
indicate to them.77 (77-83)

In relation to international arbitration, the Hague Convention of 1907 defines

the following:
International arbitration aims at the resolution of disputes between States by judges

77 SEARA VÁZQUEZ MODESTO, Public International Law, 22nd edition, Mexico 2005, p. 347

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 of their own choosing and on the basis of respect for the law. Recourse to arbitration
implies the commitment to submit to the award in good faith. 78 (78-84)

Unlike other means of dispute resolution, arbitration has very particular

characteristics, which consist of the following:

• The parties have the right to freely choose the arbitrators.

• Arbitration definitively resolves the dispute

• The arbitration award is mandatory and, as a result, is binding on

the parties in dispute.

Consent is given through the arbitration agreement, which is the legal

instrument by virtue of which the parties to the dispute express their
agreement to submit it to arbitration, its conclusion and conditions of validity
being governed by the Law of Treaties. This agreement may be established in
connection with an existing dispute or in anticipation of future disputes.
The consent to submit future disputes to arbitration is embodied in
general treaties for the peaceful settlement of disputes or in the compromise
clauses of a bilateral treaty.
The acceptance of arbitration as a means of resolving a dispute that
has already arisen is expressed in an ad hoc agreement called a compromise,
the content of which can be as broad as the parties deem appropriate, without
ignoring the fact that the model rules on arbitration procedure of the
International Law Commission (UN) indicate the issues that must inevitably be
clarified, which are the following:79 (79-85)

• The definition of the object of the controversy.

• The conditions of constitution and composition of the arbitration
body.
• Applicable law.

• The rules of procedure or the powers conferred on the arbitral

tribunal to establish them.

78 Op. Cit. note 80, art. 37

79 Yearbook of the International Law Commission, 1958, vol. II, doc. A/3859, paras. 15 and 22 to 43

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 • The necessary majority and the deadline for passing judgment.
• The headquarters and other administrative aspects.
• The languages to be used.
• The way of distributing expenses and costs.

Even when the rules of procedure are contained in an arbitration

agreement, the Hague Convention contains illustrative rules that, except in
exceptional cases, are generally followed in arbitrations.

As regards the procedure, once the arbitrators and the venue have
been designated, the arbitration body is established and operates in
accordance with the following rules:

• The parties appoint their agents, counsel and attorneys.

• There are two phases: one written, based on the memorandum, the
counter-memorandum, the reply and the rejoinder, and another oral
phase, consisting of the debates of the arbitration body.

• The parties have the right to raise exceptions or procedural

incidents.
• Members of the arbitration body may direct questions to the agents
and counsel and ask them to clarify any doubtful points.

• Once the clarifications and evidence have been presented by the

councillors and agents, the debates are declared concluded.
• Deliberations will be held in secret and decisions will be taken by
majority.
• The judgment must be reasoned and will be read in a public
session.

The arbitration award is final because appeals or cassation are not

possible before higher jurisdictions. However, it may be subject to
interpretation and review before the same court that issued it.

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 The request for interpretation will have the purpose of clarifying the
meaning of the terms of the judgment, which limits the functions of the court to
specifying the res judicata in its decision.
The appeal for review must be based on the discovery of a new fact
that, if known when the sentence was issued, would have led the court to
judge differently.
The arbitration award, like any legal act, is subject to conditions of
validity which, if violated, imply nullity. The model rules on arbitration80
procedure (80-86) lists four possible causes:

• Excess of power by the court.

• Corruption of one of its members.

• Lack of motivation in the judgment or serious violation of a

fundamental rule of procedure.
• The nullity of the commitment is subject to the Law of Treaties.

The Hague Peace Conference of 1899 gave rise to the creation of the
Permanent Court of Arbitration, whose regulations were restructured in the
Hague Convention of 1907. The purpose of this tribunal is to facilitate the
parties to the Convention to resort to arbitration as a means of resolving their
differences when these have not been able to be resolved through diplomatic
channels.
The International Bureau, an organ of the Permanent Court of
Arbitration, informs the parties of the list of registered arbitrators with the title
of members of the tribunal, and the parties, based on this list, select those
who will form part of their arbitration tribunal.
The list of arbitrators is drawn up based on the four appointments made
by each signatory party to the 1907 Convention. The States Parties shall
appoint as members of the tribunal persons with recognized competence in
matters of international law, who enjoy the highest moral character and who

80 Idem. art. 35

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 are willing to accept the role of arbitrator.
The Permanent Court of Arbitration, whose founding agreement is still
in force and open to all States, continues to operate its services from its
headquarters in The Hague.

B. Proceedings before the International Court of Justice 81 (THIS

NUMBER GOES ON THE FIRST LINE)
The International Court of Justice (81-87) is the principal organ of the
United Nations Organization. It is headquartered in The Hague, Netherlands.
It began operating in 1946, when it succeeded the Permanent Court of
International Justice, which had occupied the same facilities since 1922. The
International Court of Justice is governed by a Statute that is an integral part
of the United Nations Charter and is very similar to that of its predecessor.
The Court has a dual mission: the settlement of disputes submitted to it
by States in accordance with international law, and the issuance of opinions
on legal questions submitted to it by United Nations bodies or agencies that
have been authorized to do so.
The Court is composed of fifteen judges elected for a nine-year term by
the General Assembly and the United Nations Security Council, voting
separately from each other. The Court may not include more than one
national of the same State. Every three years, the Court renews one third of
its judges, and re-election is possible. The judges do not represent their
respective governments, but are independent judges.
Judges must meet the conditions required for the exercise of the
highest judicial functions in their respective countries, or be legal experts of
recognized competence in matters of international law. The composition of the
Court should also reflect the world's great civilizations and major legal
systems.

Only States may be parties to cases before the Court. These are the

81 The International Court of Justice www.icj-cij.org/homepage/en/ Taken on November 17, 2009

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member states of the United Nations Organization.
The International Court of Justice may hear a case only if the States
involved have accepted its jurisdiction in one of the following ways:

• By virtue of a special agreement (a compromise) concluded

between States for the purpose of submitting their dispute to the
Court.

• By virtue of a jurisdictional clause. This is the case where States

are parties to a treaty in which one of its clauses provides for
acceptance of the jurisdiction of the Court in the event of a dispute
arising in the future concerning the interpretation or application of
that treaty. Today, more than three hundred treaties or conventions
contain such a clause.

• by the reciprocal effect of declarations made by them under the

terms of the Statute, by which each of them has accepted the
jurisdiction of the Court as binding on any other State accepting the
same obligation. Declarations from 66 States are currently in force.
However, a certain number of them contain reservations that
exclude certain categories of disputes. In the event of a dispute as
to whether the Court has jurisdiction or not, the Court shall decide.
1. Contentious procedure.

The procedure followed by the Court in disputes submitted to it by

States is defined in its Statute, and in the Regulations adopted under its
Statute in 1978. Since then, this Regulation has been subject to several
amendments (the last of which came into force on 29 September 2005). The
procedure involves a written phase (exchange of procedural documents
between the Parties) and an oral phase (hearings during which the Agents
and Advisers present their arguments). As the Court has two official
languages (English and French), everything written or said in one language is
translated into the other. After the oral phase, the Court meets behind closed
doors to deliberate, and then delivers its judgment in an open hearing.
The sentence is final and unappealable. Any State which considers that

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the other Party has failed to comply with a judgment of the Court may refer
the matter to the United Nations Security Council.
The Court exercises its functions in plenary formation, but, if the parties
so request, the Court may establish one or more ad hoc Chambers. In
addition, a Summary Procedure Chamber is established annually in
accordance with the Statute.

2. Advisory procedure.

The Court's advisory procedure is open exclusively to international

organizations. Five UN bodies and sixteen institutions of the United Nations
system are entitled to request advisory opinions from the Court. When it
receives a request for an advisory opinion, the Court decides which States
and organizations can provide useful information, and allows them to submit
written and oral submissions. In all other respects, the Court's advisory
procedure is inspired by the rules applicable to contentious proceedings. The
applicable sources of law are the same. The opinions of the Court are
advisory in nature and are not binding on the bodies that have requested
them. However, certain instruments or rules may provide advisory opinions
with binding force. Since 1946, the Court has issued 25 advisory opinions,
which have dealt with, among other issues, the legal consequences of the
construction of a wall in the occupied Palestinian territory, the admission of
States to the UN, and reparation for damages suffered in the service of the
United Nations, among others.

IV. Sanctions of Public International Law

One of the characteristics of the international community is its inorganic
nature, which means that it lacks executive bodies. Thus, the repression of
illegal acts can only be carried out in the form of self-protection. This right of
self-protection is exercised by the injured State itself or may be reinforced by
the fact that other States assist the attacked or threatened State, as do some
international organizations.

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 Among the measures recognized as legitimate means of punishment
are retaliation, peaceful reprisals, legitimate defense and self-protection.

A. The Retorsion
Verdross defines it as:

“The most moderate form of self-protection generally consists of responding to a

lawful but unfriendly act with another act that is also unfriendly, but lawful. If this
definition were exhaustive, retaliation could not be considered as the repression of
an unlawful act. But in reality, States often respond to an illegal act by their
adversary with an action that, although unfriendly, remains within the limits of
International Law, and a reaction of this nature is also retaliation. Hence, retaliation
82
can be considered a sanction under international law.” (82-88)

Examples of this type of sanctions include: publicity of the illegal act to

mobilize public opinion, the breaking off of diplomatic relations, the withdrawal
of the exequatur from one or all of the adversary's consuls, and the imposition
of restrictions on entry visas, among others.

B. Peaceful Reprisals.
Reprisal is understood as a legal interference by a State whose rights
have been violated against particular legal assets of the guilty State in order
to induce it to repair the unlawful act or to desist in the future from such
actions.
Under current international law, reprisals may only be undertaken by
State bodies and not by its subjects.
In principle, a reprisal is only justified when it is clear that the adversary
refuses to make amends for the unlawful act; therefore, prior to its application,
the guilty State must be ordered to make amends for the damage caused and
the measure must be immediately suspended, if it has already been initiated
when the other party agrees to make amends, because then the conduct of
82 Op. Cit. note 34, p. 345

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the State that gave rise to the reprisal disappears.
In a normal situation, these reprisals would constitute illegal acts, but
when they become means of punishment, their illegality is excluded.
Peaceful reprisals must be proportional to the illegal act suffered; any
excess in retaliation is considered an illegal act to which it is legitimate to
oppose a new reprisal for the excess. Reprisals may consist, for example, of
refusal to pay an overdue debt, failure to comply with a current treaty,
confiscation of the guilty State's property in the territory of the injured State,
among others.
Reprisals may not be applied until international procedures for the
peaceful settlement of disputes have been exhausted. The exception to this
principle is: protective measures adopted by the injured State within its
jurisdiction, while a competent International Court or Tribunal decides on the
admission of said protective measures or when these measures have already
been decreed by the aforementioned bodies and the State that committed the
illegal act does not comply with them.
Consequently, international procedures for the peaceful settlement of
disputes must be exhausted.

Finally, it should be noted that the obligations relating to respect for

diplomatic and consular immunities, as well as those obligations arising from
a norm of ius cogens, may not be suspended by means of retaliation.

C. Self-Defense.
Self-defence means a violent and immediate reaction against current or
imminent unlawful aggression by another State or group of States against the
territory, vessels, aircraft or armed forces of a State.

This is regulated by the Charter of the United Nations, which recognizes

this right in the following terms:

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 Nothing in this Charter shall prejudice 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 measures necessary to maintain international peace
and security. Measures taken by Members in the exercise of the right of self-defence
shall be immediately reported to the Security Council and shall in no way affect the
authority and responsibility of the Council under the present Charter to take any
action it deems necessary at any time to maintain or restore international peace and
security. 83 (83-89)

Self-defense is also considered as a circumstance excluding

international responsibility and is included in the project of international
responsibility of States for illegal acts.

To determine when the exercise of the right of self-defense is justified,

the definition of aggression approved by the United Nations General
Assembly must be taken into account.
Aggression is 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, ［…］.84 (84-90)

From this definition it is indicated what kind of acts can be considered

as aggression, regardless of whether or not there is a declaration of war, and
establishes the following:85 ((85-91)
a) The invasion or attack by the armed forces of a State of the territory of
another State, or any military occupation, even temporary, resulting from such
invasion or attack, or any annexation, by the use of force, of the territory of
another State or part thereof.

b) The bombardment, by the armed forces of a State, of the territory of another

State, or the use of any weapons by a State against the territory of another

83 Op. Cit. note 75, art. 51

84 United Nations, General Assembly, resolution 3314 (XXIX). art. 1°. December 14, 1974.
85 Idem. art. 3°

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 State.
c) The blockade of the ports or coasts of a State by the armed forces of another
State.
d) An attack by the armed forces of one State against the armed forces, land,
naval or air, of another State or against its merchant or air fleet.
e) The use of armed forces of a State, which are in the territory of another State
with the consent of the receiving State, in violation of the conditions
established in the agreement or any extension of their presence in said
territory after the termination of the agreement.
f) The action of a State which allows its territory, which it has placed at the
disposal of another State, to be used by the latter to perpetrate an act of
aggression against a third State.
g) The sending by a State, or on its behalf, of armed bands, irregular groups or
mercenaries that carry out acts of armed force against another State of such
gravity that they are comparable to the acts enumerated above or their
substantial participation in said acts.

Despite the above, it is necessary to consider what is established by

article 7 of the aforementioned resolution, which states:

Nothing in this definition, and in particular in article 3, shall in any way prejudice the
right to self-determination, freedom and independence, as enshrined in the Charter,
of peoples forcibly deprived of that right, as referred to in the Declaration on
Principles of International Law concerning Friendly Relations and Cooperation
among States in accordance with the Charter of the United Nations, in particular
peoples under colonial or racist regimes or other forms of foreign domination; nor the
right of such peoples to strive to that end and to seek and receive support in
accordance with the principles of the Charter and in conformity with the above-
mentioned Declaration.

D. Self-protection.
In international law, every State is obliged to protect foreign subjects
against any violent aggression. If a State is unwilling or unable to ensure the
protection required, then, exceptionally, the injured State itself may intervene

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and do what the territorial State has failed to do. That is, exercising police
powers to protect its nationals. The principle that each State is the only one
competent to ensure the maintenance of order in its territory is thus derogated
from when other States or foreign subjects are denied due protection.
The right of States to exceptionally protect themselves in foreign
territory is recognized by international practice and is called self-protection.
This measure is intended only to prevent imminent violations of the law, and
in no way to obtain redress for an unlawful act already committed, since the
State that intervenes acts in place of the State that is internationally obliged to
maintain order. Therefore, the subsidiary action taken on its behalf must be
limited to those measures that the territorial State should have taken.

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 CHAPTER NINE
GENERAL THEORY OF INTERNATIONAL
ORGANIZATIONS

Specific objective.
This chapter will look at how the first international organizations
emerged in International Law through the association of States.
Likewise, the structure, operation and regulatory competence of the
aforementioned organizations will be known, taking into consideration those
that have general purposes and those that obey specific purposes.
Due to the importance of the United Nations Organization in relation to
the objectives it pursues, it will be studied as a model of International
Organization.

Domains
Upon completion of the study of this topic, the student will:
* Explain the beginnings of the creation of international organizations.
* Distinguish the difference between a general-purpose organization
and a special-purpose organization.
* Assess the structure of an International Organization.
* It defines the United Nations Organization taking into account its
aims and purposes as well as the structure and functioning of its
organs.

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Exercises and practices
Present (in teams) the Constitutive Charter of the United Nations and
discuss its essential aspects.
Conduct research and present a monograph on different international
organizations such as: the International Monetary Fund (IMF); the
United Nations Educational, Scientific and Cultural Organization
(UNESCO); the International Labor Organization (ILO); the World
Health Organization (WHO); among others.

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 Its creation
Concept and The members
characteristics
of International Acquisition of status Withdrawal
<
Organizations. Expulsion and
Loss or limitation of < suspension
member status
Limitation of rights

Classification of Regional Universals

International < By territorial scope
Organizations General Specific
For purposes \
TO -
Deliberative body
< Executive body
Organic Structure
Administrative body

Unanimity
Formation of the will of Dissent
international Simple or qualified majority
organizations Weighted vote
The Veto
The consensus
General Theory of
Internal regulations
International
The instructions
Organizations
Normative competence
Interorgan recommendations
of International
Organizations The decisions
Intersubjective recommendations
Preparation of international texts

Background.
Purposes and
principles.
Acquisition and loss of
membership status.
United Nations
Organization Suspension of rights and
privileges. General Assembly.
Security Council.
Economic and Social Council.
Operational Trusteeship Council.
structure International Court of Justice.
Secretariat.

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 YO. Concept and Characteristics
International Organizations, also known as interstate organizations, are
subjects of Public International Law created by States through a treaty,
endowed with permanent bodies with their own will legally distinct from that of
the member States, within the framework of powers attributed for the
achievement of the agreed objectives.86 (86-92)

They have the following characteristics:

• They are created by treaty, statute or charter

• They are made up of subjects of International Law
generally States.

• They have their own legal personality.

• They are provided with permanent bodies, which are distinct and
independent from the members of the organization.
• The organs fulfill the objectives of the organization and the objective
and collective will of the organization itself is formed within them,
which is legally distinct from that of the members of the
organization.

A. Its creation
International organizations are created, as already mentioned, by
means of a treaty, statute or charter in which their organization, composition,
purposes and functions are determined. The constitutive treaties of
International Organizations are governed by the Vienna Convention on the
Law of Treaties of 1969 and by the Vienna Convention on the Law of Treaties
between States and Organizations.

International, or between International Organizations of 1986 depending on

whether they are held between States or between States and International
Organizations.

86 Op. cit. note 17 p. 144

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B. The members
Members of international organizations are subjects of international law,
generally States, which is why they are called intergovernmental
organizations. However, nothing prevents other international organizations
and national liberation movements from being part of these organizations,
although this is not common. For example, the Food and Agriculture
Organization of the United Nations (FAO) recognizes the European
Community as a member, the latter being a regional economic integration
organization, likewise the World Trade Organization (WTO) recognizes the
European Community as a member, and Palestine (represented by the PLO)
is accepted as a member of the World Health Organization (WHO), the United
Nations Educational, Scientific and Cultural Organization (UNESCO) and the
International Labor Organization (ILO), among others.

C. Acquisition of member status

Acquisition of membership status depends on the terms of the
organization's founding treaty. Admission conditions vary from one
organization to another depending on the functions and purposes assigned,
and procedures are used to admit members in a more or less discretionary
manner.
The principle governing member status is that of legal equality, which
does not imply total equalisation and reciprocity of rights and obligations, but
rather the freedom to consent to treatment that is sometimes unequal or non-
parity in order to make international cooperation more effective. An example
of this is the composition of the United Nations Security Council, which has
permanent members and non-permanent members.
Notwithstanding the foregoing, all member States of the organization
have the right to be represented in the various organs of the organization and
to participate in the adoption of its decisions. Their obligations arise from a
general commitment to cooperate in achieving the proposed objectives.

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D. Loss or limitation of membership status
Membership may be lost by withdrawal from the organization, imposed
by the organization as a sanction, whether definitive (expulsion) or temporary
(suspension), or may be limited in the exercise of certain rights.

1. Withdrawal.
It has been discussed whether the withdrawal of a member from
an International Organization is a right that is inferred from the very
condition of membership or whether, on the contrary, this right only
exists when it has been expressly provided for in the constitutive treaty.
This issue, which was once a matter of debate, today lacks the
importance it once had, insofar as the right of withdrawal is now
supported by the practice of organisations which recognise that it is not
possible to retain their members against their will.

2. Expulsion and suspension.

The expulsion or suspension of membership status is imposed by
the International Organization in the event of a more or less serious
infringement of the principles and purposes that underpin it. For
example, the Charter of the United Nations provides for both the
suspension and expulsion of its members.

Regarding suspension, Article 5 states:

Any Member of the United Nations which has been the subject of preventive
or coercive action by the Security Council may be suspended by the General
Assembly, on the recommendation of the Security Council, from the exercise
of the rights and privileges inherent in its membership. The exercise of such
rights and privileges may be restored by the Security Council.

Regarding expulsion, Article 6 states:

Any Member of the United Nations which has repeatedly violated the
Principles contained in this Charter may be expelled from the Organization by
the General Assembly on the recommendation of the Security Council.

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 In the case of the Organization of American States, only
suspension is contemplated. This sanction was applied to Cuba in 1962
due to its change of regime, when Commander Fidel Castro took office.
Some authors consider that the Organization of American States did
not proceed to expel Cuba because the sanction was not against the
Cuban State, but against the government of that country; however, it
should be noted that the Charter of the Organization of American States
does not provide for the figure of expulsion, so that organization
proceeded to apply the suspension in accordance with Article 9 of its
charter.
In practice, it has been shown that suspension and expulsion are
exceptional measures.

3. Limitation of rights

The suspension of the rights inherent to membership may be limited to

the exercise of voting rights, with failure to meet financial obligations
generally being the cause of this limitation of rights.
The United Nations Charter provides that: A Member State which is in
arrears in the payment of its dues shall have no vote in the General
Assembly.87 (87-93)
This sanction consisting of the limitation of rights is not commonly
applied by international organizations since in many cases it is the
economically strong States that are most frequently in default and the
threat of withdrawal of such important contributors limits the organization
from applying such a measure.

11. Classification of International Organizations.

In order to classify International Organizations, the criteria taken into

87 Op. cit. note 75, art. 19

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consideration, among others, are the objectives they pursue and the territorial
scope in which they operate.
According to the territorial scope of action, International Organizations
can be classified as universal and regional. The former are open to all States
of the international community, so they admit as members countries from any
part of the world and their activity extends to the territory of the member
States, for example, the United Nations Organization (UN), the World Health
Organization (WHO), the International Telecommunication Organization, etc.
As regards regional organisations, they limit their action to a
geographical area determined in the Treaty that constitutes them, for
example: the Organisation of American States (OAS), the European
Community, the League of Arab States, etc.
Depending on the objectives pursued by international organizations,
there are those that aim to achieve general objectives and those that pursue
specific or particular objectives.

A. General purpose organizations.

These potentially include all areas in which interstate relations occur,
whether on a universal or regional basis. Among these organizations is the
United Nations (UN), whose basic objectives are to maintain international
peace and security, as well as cooperation in the economic, social, cultural
and humanitarian fields. The Organization of American States (OAS) also has
general purposes, within a more limited territorial scope; its objectives are,
among others, continental security, the peaceful resolution of disputes and
cooperation in various areas.

B. Special purpose organizations.

These organizations have their functions statutorily limited to a certain
material sector, and may also have a universal or regional vocation. Among
the organizations with specific purposes, the following are distinguished:
Those of economic cooperation, for example, the Organization for

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Economic Cooperation and Development (OECD), the European Community,
the International Bank for Reconstruction and Development (IBRD).
Those of cooperation in the social, cultural and humanitarian areas, for
example the United Nations Educational, Scientific and Cultural Organization
(UNESCO), the International Labor Organization (ILO) and the World Health
Organization (WHO), among others.
Those of technical cooperation, for example the Universal Postal Union
(UPU), the International Telecommunication Union (ITU), the International
Maritime Organization (IMO), etc.

Special-purpose agencies should not be confused with specialized

agencies. Specialized agencies, in addition to having a specific purpose,
perform certain functions in technical matters of common interest to States
and enter into partnership agreements with some organization with general
purposes, whether of a universal or regional nature. For example, the Inter-
American Commission of Women (CIM); the Pan American Health
Organization (PAHO); etc., which are linked to the Organization of American
States (OAS).

III. Organic structure

International Organizations have a system of permanent bodies through
which they express a will independent of that of the member States. The
organs are therefore the means of action for the exercise of the functions and
the achievement of the objectives of an Organization. There is no uniform
organic model, but rather one that varies depending on the nature of the
activities and the circumstances that each Organization must face.
The organs of an International Organization may be principal or
subsidiary.
A. The main organs
These are those expressly provided for as such in the organization's
founding treaty. It generally contains three main types of bodies: a deliberative

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body, an executive body and an administrative body.

1. Deliberative body
It is a principal body with plenary composition in which all Member
States are represented. It is known by different names: General Assembly
(UN), Conference (ILO), Congress (WHO) and Board of Governors (IDB).
Plenary bodies perform different actions but their main function is to constitute
a deliberative body. The members of this body meet regularly, either semi-
annually, annually, biannually, etc., and have general authority to agree on
the organization's fundamental lines of action.

2. Executive body
International organizations have among their main organs one or more
restricted organs that, as their name indicates, will only have access to some
of their representatives from member states. They are called council, steering
committee, executive or administration committee. Its composition is closed,
that is, more restricted than that of the deliberative body. It exercises
executive functions and other powers that are necessary to achieve its
purposes; for example: The United Nations Security Council.

3. Administrative body
It is a single-person body, called General Secretariat, General
Directorate or Presidency. It is characterized by being an organ that exercises
administrative functions of representation and political-executive functions of
the organization, such as those exercised by the Secretary General of the
United Nations Organization.

B. Subsidiary bodies
They are generally created by resolution of the main organs of the
Organization to whose direction and control they are subordinate,
without this being an obstacle to their being created exceptionally by an

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 international treaty. They perform functions assigned to them by the
main organs.
The composition of the bodies may be intergovernmental, non-
governmental or mixed.

Intergovernmental bodies are composed of representatives of the

governments of the Member States.
Non-governmental bodies are made up of people who exercise their
functions in an individual capacity, independent of States, also known as
expert bodies.
Mixed composition bodies are rare; an example of this are the bodies of
the International Labour Organisation, which are made up of representatives
of the governments, employers and workers of the member states.

IV. Decision-making methods.

Within the scope of the powers attributed to them, the Organizations
have the power to express, through certain acts of their bodies, their own will,
legally distinct from that of the Member States.
The procedures that are used in international practice to form the will of
international organizations, through their own unilateral acts, which are
generically called resolutions, procedures or voting methods, are the
following: unanimity, the method of dissent, weighted voting, simple or
qualified majorities, consensus and veto.

A. Unanimity.
The unanimity rule is based on the formal equality of the Member
States and guarantees that none of them will be bound by a decision taken
without their consent. This rule, which in principle guarantees respect for and
is restricted to the will of each of the States that make up the Organization,
has a serious drawback, since a single negative vote will be enough to block
the decision-making process and delay or hinder the purpose being pursued.

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This procedure may be appropriate for international organizations with a small
number of members in which there is great homogeneity and internal
cohesion.

B. Dissent.
It consists of limiting the application of the resolution to the Member
States that approved it. States that voted against or abstained from voting are
not bound by this resolution. This system is generally applied in areas of
economic cooperation.

C. Simple majority or qualified majority.

Majority rule is the decision-making method established in the majority
of the constitutive treaties of the Organizations. This majority may be simple
or qualified and operates based on the importance of the decision to be taken.
Thus, for example, the United Nations General Assembly makes its decisions
on important issues by a two-thirds majority vote of the members present and
voting, with the rest of the less important decisions requiring a simple majority,
that is, half plus one of the voters, not including abstentions. When a
resolution is passed by this method, the relevant resolution is binding on the
dissenters. This majority system facilitates decision-making, providing the
organisation with dynamism and autonomy from the Member States.

D. The weighted vote.

It means departing from the principle that each State has one vote,
which in turn derives from the principle of equality of States. Under this
procedure, some States have more votes than others when making decisions
in certain bodies. This method aims to ensure that certain States with greater
power and resources can ensure the satisfaction of the objective sought. This
type of voting is used in some organizations such as the International
Maritime Organization (IMO), the International Monetary Fund (IMF) and the
International Bank for Reconstruction and Development.

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E. Veto.
The veto is granted to certain members of the Organization's restricted
bodies; for example, the five States that make up the United Nations Security
Council enjoy this right. In this regard, Loretta Ortiz Half points out that: the
right to veto is a sneaky way of including the rule of unanimity, that is,
requiring unanimity in the small group of States with the objective of adopting
decisions that are binding on the entire International Organization.

F. Consensus.
It is the decision-making procedure without a vote that involves the
search for a general compromise or agreement through the consensus of the
members without any decisive objection. The practice of consensus spread
from the 1960s onwards in universal organisations with wide acceptance by
all state groups.
This procedure allows resolutions to be adopted without resorting to the
formality of voting; to do so, the President of the body evaluates and
announces the agreement or lack of opposition of the members when
approving a resolution without a vote.
Consensus has the advantage of avoiding dissenting majorities, but its
drawback may lie in the ambiguity and even imprecision of the commitments
made, which may give rise to problems of interpretation of some provisions
arising from some of the conventions negotiated by consensus, as occurred
with the 1982 Convention on the Law of the Sea.

Currently, the World Trade Organization (WTO) provides it as a means

of decision-making.

V. Normative competence of international organizations

In the exercise of their activities, international organizations have the
capacity to create legal norms as a consequence of the normative power
granted in their founding treaties.

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 This normative power is manifested within international organizations,
for example, in norms directed at their own organization or outside the
organizations when directed at other subjects of International Law.

A. Regulatory competence in the domestic sphere

In the internal sphere, regulatory competence is expressed in internal
regulations, instructions and inter-organisation recommendations:

1. Internal Regulations.
They contain the operating rules of each of the organs of the
International Organization. The constitutive treaty itself gives them the
capacity to organize themselves and to dictate mandatory rules for their
proper functioning.

2. The instructions.
They are issued by the principal body and are binding on the bodies to
which they are addressed by virtue of their subordination to the body from
which they emanate. This subordination may be provided for in the founding
treaty or the principal body may create the subsidiary body for the effective
performance of its functions.

3. Inter-organ recommendations.
They occur between organs of the International Organization without
any subordination between them. It arises when one addresses another with
whom there is a relationship of coordination or even dependence. They are
not mandatory and include those that constitute a prerequisite for other
recommendations that are mandatory. Thus, in the case of the United
Nations, the General Assembly has the power to admit new member States,

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but before making a decision it must receive a recommendation from the
Security Council.

B. Regulatory competence in the foreign sphere

The normative power of International Organizations towards the outside
is manifested through obligatory decisions, intersubjective recommendations
and the preparation of international texts.

1. The decisions.
These are mandatory for their recipients. They are based on the powers
conferred by the constitutive treaty to the organ that adopts it, for example,
those of the Security Council that restore the rights and privileges of a
member of the United Nations that have been suspended; those that establish
measures aimed at maintaining international peace and security and those
that dictate measures to execute the judgments of the International Court of
Justice.

2. Intersubjective recommendations.

They are called this way because they are directed from one subject of
International Law to another, in the specific case, those directed by an
International Organization to the member States or to other International
Organizations. Generally, these recommendations are not obligatory, except
in some exceptional cases in which they produce obligatory effects, such as
when they are imposed on the Member States in the constitutive treaty itself
or when the recipients of the resolutions voluntarily undertake to comply with
them.

3. Preparation of international texts.

This external normative manifestation of the International Organization
consists of preparing treaties and other international instruments. It is carried

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out by calling an international conference or by the direct adoption of the
treaty by an organ. It should be noted that, as a preparatory function, there
are declarations with the purpose of defining certain principles in certain
matters; these declarations are not obligatory in principle, unless they later
become legal norms by being embodied in a treaty or by becoming
international custom, or unless they previously recognize norms of customary
international law.

VI. United Nations Organization

The United Nations is an organization of sovereign states that occupies
a primordial place in the system of international relations. States, in one way
or another, place their hopes on the Organization to maintain international
peace and security, promote friendship among all nations and support
economic and social progress throughout the world.

A. Background of the United Nations Organization

The United Nations Organization has as its antecedent the first global
organization called the League of Nations created in 1919, which arose
simultaneously with the Treaty of Versailles with which peace was signed
between European nations to end the First World War.
Unfortunately, it did not manage to consolidate itself due to various
factors, mainly those of a political and economic nature, such as the
disorganization of the world economy and the expansionist desire of countries
such as Germany and Japan, which led to a Second World War.
As early as 1943, when the balance tipped in favor of the Allied powers
in World War II, precisely in the Moscow Declaration on General Security
dated October 30, 1943, the United States, the United Kingdom, the Soviet
Union and China committed themselves to creating a new organization,
distinct from the failed League of Nations, for the maintenance of international
peace and security. The idea was reaffirmed at the Tehran Conference held

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between representatives of the Soviet Union, the United States and the
United Kingdom from November 28 to December 1, 1943.
The fundamental aspects of the new Organization were agreed upon at
the Dumbarton Oaks Conference by experts from various nations between
August 21 and October 7, 1944, approving the legal statute of the nascent
world Organization.
Finally, at the San Francisco Conference held in that city of the United
States from April 25 to June 26, 1945, the Charter of the United Nations, also
known as the San Francisco Charter, was drafted and adopted, which entered
into force on October 24 of the same year and was signed by 51 States
considered as original members.
B. Purposes and principles of the Organization.

1. Purposes.

These are contained in Chapter I of the United Nations Charter in Article 1,

which states:

The Purposes of the United Nations are:

• Maintaining international peace and security

• To promote friendly relations among nations based on respect

for the principle of equal rights and self-determination among
peoples.

• To carry out international cooperation in the solution of

international problems of an economic, social, cultural or
humanitarian nature and respect for human rights and
fundamental freedoms.

• To serve as a center that harmonizes the efforts of nations to

achieve these common goals.

2. Beginning

Principles are the rules by which the Organization tends to achieve its

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purposes. Previously, these principles were only included in Article 2 of the
Charter, but were subsequently expanded and developed.88 (88-94)

These principles are considered guiding principles of International Law,

which must be respected by all countries (tax law rules), do not admit
derogation or modification by States, and are the following:

• Sovereign equality of all its members.

• Good faith compliance with international obligations.

• Resolution of disputes by peaceful means.

• Prohibition of the threat or use of force against the territorial integrity

or political independence of any State.
• Non-intervention in the internal affairs of States.
• Duty of cooperation between States.
• The free self-determination of peoples.
• Protection of human rights.
• Authority over non-member States.

C. Acquisition and loss of membership status.

Membership of the United Nations requires: being a peace-loving State

that accepts the obligations set forth in the Charter and that, in the judgment
of the Organization, is able and willing to fulfill those obligations. Admission to
membership in the United Nations shall be effected by a decision of the
General Assembly on the recommendation of the Security Council.

Furthermore, in the event of repeated violations of its obligations under the

Charter, a Member State may be expelled from the organisation. Both
admission and expulsion require a two-thirds majority vote of the General
Assembly and a nine-vote majority vote of the Security Council, including all
permanent members.

88 UNITED NATIONS ORGANIZATION, General Assembly, resolution 2625 (XXV). October 24, 1970

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D. Suspension of rights and privileges.

With regard to suspension, the following provisions are made: Any

Member of the United Nations which has been the subject of preventive or
coercive action by the Security Council may be suspended by the General
Assembly, on the recommendation of the Security Council, from the exercise
of the rights and privileges inherent in its membership. The exercise of such
rights and privileges may be restored by the Security Council.

Finally, there is the possibility that a member of the Organization may

withdraw voluntarily; this situation is not provided for by the Charter of the
Organization, but there is a precedent: the voluntary withdrawal of Indonesia
in 1965, only to return shortly after, without undergoing a new admission
procedure, so that the alleged withdrawal had the effect of voluntary
suspension.

E. Operational structure

The San Francisco Convention established that the structure of the

Organization would consist of six principal organs: the General Assembly, the
Security Council, the Economic and Social Council, the Trusteeship Council, the
International Court of Justice and the Secretariat. Also providing for the possibility of
establishing, in accordance with the provisions of the Charter itself, any subsidiary
bodies that may be necessary.

1. General Assembly.
It is the most important organ. It is made up of all members of the
United Nations. Its decisions are taken by simple majority, except when it
involves an important matter, in which case a two-thirds majority of the
members present and voting is required.

These issues will include: recommendations relating to:

• The maintenance of international peace and security.

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 • The election of non-permanent members of the Security Council.

• The election of members of the Economic and Social Council.

• The election of members of the Trusteeship Council.

• The admission of new members to the United Nations.
• Suspension of the rights and privileges of members.
• The expulsion of members.

• Issues relating to the operation of the trust administration regime.

• Budgetary issues.
The General Assembly meets annually in ordinary sessions that open
on the third Tuesday of September, and at the request of the Security Council
or the majority of the members of the Organization, in extraordinary sessions.
Each State has one vote in the General Assembly and in any other
body in which it is represented. The Assembly has six official and working
languages: Arabic, Chinese, English, French, Russian and Spanish.

2. Security Council.
Because of its primary function of maintaining international peace and
security, it is the United Nations body with the greatest responsibility.
It is made up of fifteen members, five of whom are permanent and the
remaining ten are renewed periodically. Non-permanent members serve for
two years, and their election takes into consideration their contribution to the
maintenance of international peace and security and the other purposes of the
United Nations, as well as equitable geographical distribution.
Voting is as follows: for procedural matters, a vote of nine members is
sufficient. For other matters, an affirmative vote of nine members, including
the five permanent members, is required. This is a resolution of the Security
Council on a non-procedural matter that will only be valid in the event of a
positive vote by the five permanent members.

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3. Economic and Social Council.
According to its statutes, the United Nations Organization aims to
promote international cooperation in solving international problems of an
economic and social nature and, to this end, attributes powers to both the
General Assembly and the Economic and Social Council, the latter being the
body par excellence intended to promote and fulfill these purposes.
The Economic and Social Council is composed of 54 members elected
by the General Assembly for a period of three years, according to criteria of
geographical distribution, and one third of the members are renewed each
year.
This Council is responsible for coordinating relations with specialized
agencies that, in accordance with the United Nations Charter, may be linked
to the Organization through an agreement. These specialized agencies have
a wide variety of competencies, such as, for example, the following areas:

• Economic: The International Monetary Fund (IMF), the World Bank

Inter-American Development Bank (IDB), Food and Agriculture
Organization of the United Nations (FAO).

• Social: The International Labour Organization (ILO).

• Communications: The Universal Postal Union (UPU), the
International Civil Aviation Organization (ICAO).

• Technique: The International Atomic Energy Agency (IAEA), the

World Meteorological Organization (WMO).

• Educational, Cultural, Scientific and Health: The United Nations

Educational, Scientific and Cultural Organization (UNESCO), The
World Health Organization (WHO)
The Economic and Social Council also has several subsidiary bodies, the
most important of which are the five regional economic commissions: the
Economic Commission for Europe, based in Geneva; the Economic
Commission for Asia and the Pacific, based in Bangkok; the Economic
Commission for Latin America, based in Santiago, Chile; and the Economic

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Commission for Western Asia, based in Beirut.
In conclusion, we can affirm that the Economic and Social Council
fulfills a primary function of the United Nations, which is international
cooperation that prevents conflicts that could endanger international peace
and security.

4. Trusteeship Council.

This body was established to oversee the administration of trust

territories or territories under trusteeship. Its purpose is to promote the
political, economic, social and educational advancement of its inhabitants to
achieve their own government or independence. The Trusteeship Council is
made up of three classes of Member States of the Organization:

• Those who administer trust territories

• Permanent members of the Security Council that do not administer

trust territories and
• other Member States elected for three-year terms by the General
Assembly in such numbers as may be necessary to ensure that the
total membership of the Trusteeship Council is equally divided
between the administrators of such territories and non-
administrators.

Since the United Nations was founded in 1945, more than 80 nations
whose peoples had been subjected to colonial domination have joined the
Organization as sovereign and independent States. Furthermore, many other
territories have become politically associated with independent states or have
been integrated with other states as a result of self-determination.

In 1994, the Security Council terminated the Trusteeship Agreement for

the last of the original eleven trust territories listed in the programme. This last
territory was the Pacific Islands (Palau), administered by the United States.
The Trusteeship Council, by amending its rules, will meet only when

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necessary.

5. Secretariat.

The Secretariat is responsible for the day-to-day work of the United

Nations and provides services to the other principal organs of the
Organization, as well as administering the programmes and policies they
develop.

The Secretariat consists of a Secretary-General and such staff as the

United Nations may require. The Secretary-General is the highest-ranking
administrative officer of the Secretariat and of the entire Organization. He is
appointed by the General Assembly on the recommendation of the Security
Council and serves a five-year term with the possibility of re-election. The
appointment generally falls to people with great diplomatic capacity who can
or try to reconcile the interests of major international trends. It has important
political and diplomatic powers and represents the United Nations before
public opinion.

The functions of the Secretary-General are very broad: he must act as

secretary at all sessions of the General Assembly, the Security Council, the
Economic and Social Council and the Trusteeship Council, performing such
other functions as those bodies assign to him. It is required to submit to the
General Assembly an annual report on the activities of the entire
Organization; it has the power to draw the attention of the Security Council to
any matter that may endanger the maintenance of international peace and
security; and it is responsible for keeping a record of the international treaties
concluded between the member States of the United Nations Organization.

Staff are accountable for their activities only to the United Nations and
are sworn not to seek or receive instructions from any government or authority
outside the Organization. Member States also undertake to respect the
exclusively international character of the performance of the functions of the

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Secretary-General and his staff and not to seek to influence them.

6. International Court of Justice.

It is the principal judicial organ of the United Nations and its

headquarters are located in The Hague. It is responsible for resolving legal
disputes between States Parties and issues advisory opinions to the United
Nations and its specialized organizations. The "Statute of the Court" is an
integral part of the "Charter of the United Nations".

As already analyzed in the previous chapter, it is possible to initiate two

types of proceedings before the International Court of Justice: contentious
and advisory, and their structure and operation were also detailed in the
aforementioned chapter.

VII. Towards a new International Organization of humanity.

Due to the historical context in which the United Nations was created,
its most ambitious objective has been to achieve and maintain international
peace and security. This objective has been achieved on numerous
occasions, but in others the existence of this organisation has not been
sufficient to prevent armed conflicts from breaking out, an example of which
has been the conflict in Iraq since 1994.

At the beginning of the 21st century, the scenario is different: on the

one hand, it is dominated by globalization and exclusion, and on the other
hand, threats to international security are taking on new faces, such as
terrorism. The proliferation of weapons of mass destruction, flagrant violations
of human rights and even natural disasters that occur with increasing
frequency are other ingredients that characterize the current era. In this
context, the United Nations has not always acted with the desired level of
efficiency.

Due to the above, the voices of learned jurists in the field and lovers of

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a new international legal order have been raised, in particular Dr. Luis Ponce
de León Armenta who, through his work "TransUniversal Model of Law and
the State"89, (89-95) proposes a model
scientific whose purpose is the full realization of the human being and his
quality of life in the context of the universe at all times and in all places.

In the eleventh chapter of the aforementioned work, entitled "Towards a

new world organization for humanity", it proposes the creation of the World
Organization of Humanity (OMH) through the reform of the United Nations
Organization or its replacement by the new political organization of humanity
that can address the serious problems of coexistence and the deterioration of
the ecological balance of our planet that can lead to human self-destruction.

Regarding the structure and operation of this new organization, it

proposes the following:

In this new World Organization of Humanity it is possible to fully and without

limitations apply the Theory of the Classification of the Supreme Power of Humanity,
in which four specific powers or mandates and three general functions are
established. The four specific powers are the Executive Power, the Legislative and
Representative Power, the Judicial Power and the Electoral Power and the three
general functions are the self-evaluation function of the State, the function of
provision of justice and security and the educational and human communication
function.

These powers and functions must be inserted at a universal level and in all
other forms of the State in order to achieve social harmony as an aspiration that has
been postponed several times. Only through the New World Organization of
Humanity can the sovereignty, autonomy and self-determination of all tissues,
organs and systems that generate human and institutional relations be emphasized.

89 PONCE DE LEON ARMENTA, LUIS, Trans-Universal Model of Law and the State, Editorial Porrúa,
Mexico, 1998, p. 243 – 246.

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 CHAPTER TEN
INTERNATIONAL ENVIRONMENTAL LAW

Specific objective.
This chapter will analyze the way in which International Law has begun
to establish international standards for the conservation and protection of the
environment, that is, a set of legal rules that regulate the behavior of States in
terms of their actions in environmental matters that have to do with the unity of
the ecosystem and the commitment to protect natural resources for the benefit
of present and future generations, thus preserving the human environment in
its global dimension.

Domains
Upon completion of the study of this topic, the student will:
* Estimates the need for environmental protection.
* Explains the guiding principles of international environmental law.
* It distinguishes between the international responsibility of the State
for environmental pollution due to illegal acts and the international
responsibility of the State for acts not prohibited by international law or
objective responsibility.
* Assess the guiding principles of international environmental law.

Exercises and practices

Prepare a summary of the environmental conventions of
Stockholm and Rio de Janeiro.

To locate some cases of international responsibility for environmental

pollution at the international level.
Investigate the Mexican case of contamination of the Ixtoc I well and the

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resolution issued in this regard.

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 Stockholm Conference

Rio de Janeiro Conference

Hard law rules

Soft law rules

Of sovereignty and
responsibility.

Of good neighborliness and

international cooperation.

Preventive action.

Precautionary.

Compensation for damages.

International Of common but differentiated

environment responsibility.
al law
Of sustainable development.

Prior notice.

Of intergenerational equity.

Access to information.

Liability for unlawful acts

International responsibility
of the State for
environmental pollution
.

Within the areas of Public International Law is International

Environmental Law, which is a relatively young branch within this discipline, so
YO. its regulation is novel and
Responsibility for acts not
Introduction prohibited by international law
therefore it is an area of study and research

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with serious problems. It could be defined as: the set of international legal
rules that aim to protect the environment90. (90-96)
The above taking into consideration that the environmental problems
that arise in the international sphere are no longer only problems of a cross-
border nature, but those that in one way or another affect the preservation of
the human environment, considered in its global dimension.
To this effect, Antonio Remiro Brotóns91 (91-97) points out that the rules
of Environmental Law to be effective must be inspired by the fact that the
environment: is a common value of international society; constitutes a unit that
must be preserved in its integrity, and requires as a consequence international
cooperation on a planetary scale to harmonize ecology and economy,
environment and development and for the latter to be sustainable.
In the configuration of the norms of International Environmental Law,
international organizations such as the United Nations Organization with its
United Nations Environment Program (UNEP) have played an important role,
as well as international non-governmental organizations (NGOs) that have
been very interested in collaborating in the application of international
standards of environmental protection.
Among the most relevant international instruments in this area is the
Charter of Economic Rights and Duties of States, adopted by the General
Assembly of the United Nations on December 12, 1974, which proclaims "the
protection, preservation, and improvement of the environment as one of the
fundamental elements of the new international economic order" and to this
effect states the following92: (92-98)
The protection, preservation and improvement of the environment for present and
future generations is the responsibility of all States. All States should seek to
establish their own environmental and development policies in accordance with that
responsibility. The environmental policies of all States must promote and not
adversely affect the current and future development potential of developing countries.
All States have the responsibility to ensure that activities within their jurisdiction or
under their control do not cause damage to the environment of other States or of
areas beyond the limits of national jurisdiction. All States should cooperate in the

90 ALEXANDRE KISS, DROIT de l'environnement, A. Pedone, Paris, 1989, p. 5.

91 Op. cit. note 17, p. 1125
92 UN General Assembly Resolution 3281 (XXIX), art. 30, December 12, 1974

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 development of international standards and regulations in the environmental field.

In the same vein, it is also worth highlighting the Conference on the

Security and Cooperation in Europe 1st. of August 1975, whose final act, in
the part relating to the environment, proposes a detailed series of essential
objectives in the field of environmental cooperation.

II. Historical development

The historical development of environmental law can be historically
limited to two stages: before the Stockholm and Rio de Janeiro conferences
and after they were held.
International environmental protection was initially conceived from an
exclusively sectoral perspective, that is, conceived around the different areas
that make up the biosphere such as living species, water, etc. and within them
it was basically limited to the spaces subject to each state sovereignty which
were intended to be protected from contaminating risks. In this way, it was
argued that the protection of the environment against national polluting action,
considered a domestic responsibility, would be at the expense of each state
as long as it did not cause damage to third parties.
As a result of this approach, the majority of international rules on
environmental conservation were dispersed in bilateral treaties signed within
the traditional framework of cross-border cooperation.
The end of the sixties marked the beginning of the new International
Environmental Law, based on an integrated and universal plan for its
protection that arose from the social alert about the deterioration of the
biosphere due to the predatory and degrading harassment of human action
and thus we have the contamination of seas and oceans derived from
accidents or discharges of polluting substances, the threat of extinction or the
consummation of the same of species of fauna and flora, and the
contamination of the atmosphere.

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 A. Stockholm Conference.
This first conference held in Stockholm, Sweden, from June 5 to 16,
1972, called the United Nations Conference on the Human Environment, is
considered the first international instrument that addressed the problem of the
environment from a global perspective.
At this conference, the international community for the first time gave
special attention to environmental problems. One of the achievements of this
conference was to enable citizen participation in both national and
international environmental programmes through non-governmental
organisations (NGOs).
As a result of this conference, the Stockholm Declaration on the
Environment was approved, which proclaims that: the earth's natural
resources, including water, air, soil, flora and fauna as representative samples
of natural ecosystems, must be preserved for the benefit of present and future
generations through careful planning.
The Stockholm recommendations were complemented by an
environmental action plan and institutional and financial provisions for the
creation of an environmental programme and fund established by the United
Nations93 General Assembly. (93-99)

B. Rio de Janeiro Conference.

This Conference sponsored by the United Nations Organization twenty
years after the Stockholm Conference took place from June 3 to 14, 1992, in
Rio de Janeiro, Brazil, and which has also been called the Earth Summit, is
considered as the continuation of the Stockholm Conference. In general
terms, it was characterized by its tendency towards solidarity, globalization
and the distribution of burdens and obligations in environmental matters, even
though there was an absence of will on the part of developed countries to
share financial obligations.
The following instruments were approved:

93 UN General Assembly Resolution 2997 (XXVII), 15 December 1972

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 • The Rio Declaration on Environment and Development
• General Principles of Forest Conservation
• The Agenda 21 Program
• The Convention on Climate Change.
• The Convention on Biological Diversity

The main contribution of the Rio de Janeiro Conference is the

formulation of the principle of “sustainable law” as a guiding principle in the
regulation and protection of the environment. It has also constituted, along
with the Stockholm Conference, the beginning of the process of evolution of
International Environmental Law because it has served to mobilize and
promote awareness of the Earth as the home of humanity and of the
interdependence of its natural resources that must be protected by and for
human beings who are recognized as having the right to a healthy and
reproductive life in harmony with nature.94 (94-100)

III. Sources of International Environmental Law and its

Standards

Since this discipline is part of Public International Law, it shares its

sources, therefore we have as such international treaties, international
custom, general principles of law, as well as international declarations and
resolutions.
Loretta Ortíz Ahlf points out in this regard that: in practice, a
classification of the sources of International Environmental Law according to
the binding nature of its norms has been gaining strength and thus refers to
the norms of hard law and those of soft law.95 (95-101).

A. Hard law rules.

94 Rio Declaration on Environment and Development. June 3-14, 1992, preamble p. 1

95 Op. cit. note 1, p. 640

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 It is made up of all those mandatory rules from which legal obligations arise and
whose non-compliance gives rise to international responsibility, such as Treaties and
international custom.

B. Soft law rules.

It consists of the standards established in international instruments that are not
legally binding, mainly international declarations.

As can be seen, soft law regulations allow for greater flexibility and
developed states, which are more prone to violating environmental regulations
and do not feel constrained to enforce them, tend to accept this type of
regulations. However, they have a disadvantage due to the lack of legal
binding force, but in some way they represent a first step in the formation of
conventional norms, that is, in norms derived from a treaty or in the formation
of international custom that will later become norms of hard law.

IV. Principles of International Environmental Law.

These guiding principles of international environmental law are

expressly recognized in the Stockholm Declaration and are ratified and
complemented by the Rio Declaration.
Some of these principles are as follows:
.
A. Principle of Sovereignty and Responsibility (sic utere tuo alienas non
leadas).
It consists of the right of peoples and nations to permanent sovereignty
over their natural resources and wealth, which must be exercised in the
interest of the development and well-being of the country's inhabitants, without
causing damage to the environment of other countries or areas beyond
national jurisdiction.

B. Principle of good neighborliness and international cooperation.

It establishes the duty of States to cooperate to investigate, identify and
prevent environmental damage. To this end, States must develop and transfer

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technology that enables them to achieve this goal.

C. Principle of preventive action.

It provides for the obligation of States to take preventive measures to
avoid damage within their own jurisdiction, seeking to stop the elimination of
toxic substances in quantities or concentrations that exceed the degradation
capacity of the environment in order to ensure that no damage is caused to
ecosystems.

D. Precautionary principle.
It establishes that States must adopt measures aimed at avoiding
serious and irreparable damage. Where there are threats of serious or
irreversible damage, lack of full scientific certainty shall not be used by States
as a justification for postponing cost-effective measures to prevent
environmental degradation.

E. Principle of compensation for damages.

States have the responsibility to ensure that activities carried out within
their jurisdiction or control do not cause damage to the environment of other
States or areas beyond the limits of their national jurisdiction, but in the event
of environmental damage they have the obligation to compensate.

F. Principle of common but differentiated responsibility.

States must fulfil the common responsibility to protect the environment
arising from international obligations which, in accordance with equity, must
be differentiated due to the different circumstances of each State. Developed
countries, which are generally the most polluting, therefore have greater
obligations than developing countries when it comes to taking preventive
measures or compensating for the damage caused.

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G. Principle of sustainable development.
It consists of the fact that the economic development, social welfare and
environmental policies of the States must be designed in such a way that they
are consistent with each other and based on a long-term perspective, thereby
ensuring that they do not damage the environment.

H. Prior notification principle.

This principle requires that prior and timely notice and relevant
information be provided to each of the States that could be harmed by natural
disasters, emergency situations or harmful activities that may affect the
environment.

I. Principle of intergenerational equity.

Intergenerational equity is the responsibility of each generation to leave
the new generations an inheritance of wealth that is no less than what they
themselves inherited. The current generation has the responsibility of
managing the care of natural resources for new generations.

J. Principle of access to information.

It provides that every person has the right to be informed by their State
about its environmental policies, materials and activities that could affect their
communities, as well as the opportunity to participate in decision-making.

V. International responsibility of the State for environmental pollution

.

A. Liability for unlawful acts

In accordance with the principles recognised in the Stockholm
Declaration and the Rio de Janeiro Declaration, the State is internationally
responsible for environmental pollution whose effects cross its borders,
affecting the territories of other States.

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 International responsibility arises from the commission of an unlawful
act which is composed of two elements: an act or omission attributable to the

State; and the violation of International Law originating from the act or
omission of the State.

B. Responsibility for acts not prohibited by law

International
In addition to liability for unlawful acts, in recent years a separate project
has been proposed to address liability for the harmful consequences of acts
not prohibited by international law. The International Law Commission in
charge of the project initially focused on activities that arise within the
jurisdiction of a State and that are likely to cause harm beyond the borders of
that State.
This liability regime can be considered exceptional in the sense that it
only arises when the lawful activities carried out are risky. It should be noted
that with these activities, no matter how strict the precautionary and safety
standards are, there is still the possibility of causing serious damage.
Since this is a regime of objective liability, it is the State responsible that
must provide evidence to demonstrate that its activity was not the cause of the
damages caused, otherwise it would have to repair the damages and losses.
In positive international law there are no rules relating to objective
liability in a generalised manner, not even in practice that could give rise to the
formation of a custom in this regard.
Based on these considerations, we can conclude that liability for
pollution may arise from the commission of an unlawful act, either because a
treaty is violated or because the customary standard of due diligence is not
complied with. In this case, only the affected State(s) may demand
international liability. In this case, the victim States must prove that the illegal
act was committed. International liability may also arise when States carry out
dangerous or risky activities whose polluting effects transcend their borders. In

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such a case, the respondent State must prove that its activity was not the
cause of the pollution, since otherwise it will have to repair the damages
caused, even though its conduct was lawful.

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