PUBLIC INTERNATIONAL LAW-GPR 301
PUBLIC INTERNATIONAL LAW
GPR 301
TAUGHT BY: PROF SITUMA
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FROM JANUARY 14TH 2014
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LECTURE 1: 18TH JANUARY 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 1: NATURE AND SCOPE OF PUBLIC INTERNATIONAL LAW
DEFINITION
Public International Law or as referred in some quarters as The Law of Nations is that body of
law which is composed of the principles and rules of conduct which states feel bound to and do
observe with their relationship to each other.
It also includes rules of laws relating to the functioning of international institutions or
organizations, their relation to each other and the states and individuals as well as certain rules
of law relating to individuals and non state entities so far as the rights and duties of such
individuals and non state entities are the concern of the international communities.
We are saying that public international law is that body of law which is composed of the principles
and rules of conducts which states “feel bound” to and do observe. Through out this course I want
you to disabuse yourself of what you have known in what we call municipal law or domestic law
because in the international legal order the primary actor is the state. It is the state that passes the
law or the rules; it is the state that implements those rules or those laws. That is why we say “states
feel bound”. You and I have no choice other than to obey the laws enacted by the Kenyan National
Assembly, there is nothing like we “feel bound” we have no choice, but in the international legal order
the primary actor is the state, there is no authority over and above the state. To impose laws on the
state we can go out kicking and scream about this .You and I have no choice when the National
Assembly has passed an Act and the President has accented to it, immediately the President has given
his accent, there it is whether we like it or not we have to obey. In international legal order it is the
states that say alright this is what we want to agree on as binding and this is how we want to
implement. It is the state that enact and it is the state that implements .Because over and above the
state there is no authority, in municipal law over and above you there is the government.(That is not
the p
This definition covers recent developments which have qualified traditional conception of
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on the basis of either state practice or multilateral treaties.
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international law as a system of rules and principles that are applicable to inter-state relations
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There have lately emerged numerous regional institutions and organizations which have been
endowed with International legal personality and are capable of entering into relations with
each other and with the state.
If you look at the contemporary legal order there are more than 5,000 such regional institutions and
organizations. Endowed with legal personality and are capable of entering into relations with each
other and with the state.
Such regional institutions and organizations are governed by regional international law rules as
opposed to general rules which are of universal application.
We all know an organization known as AU, EU or Organization of American States. All these are
regional international organizations and governed by what are calling regional international rules. The
AU is governed by the Constitutive Act of the AU; the Constitutive Act of the AU is not applicable
outside Africa. The EU is governed by the 1993 …Treaty that Establishing the EU,that Treaty is not
applicable outside the EU.The Organization of American States is governed by the 1946 charter of the
organization of American States, if there is any dispute among these organizations they apply their
respective constitutive treaties. In Asia there is ASEAN…those treaties constitute the regional
international law. Even within Africa we have the EAC.You can not apply the EAC treaty to SADC or
ECOWAS.
When you talk of general rules of general application the classical example is the 1945 UN Charter. It
binds all the 193 member states and non member states. Article 2 paragraph 6 of the UN Charter for
example binds both member and non member states when it comes to matters of peace and security.
This is the distinction between regional international law and general rules of general application.
Further, there has been a general international movement to protect human rights and
fundamental freedoms of individuals, the creation of new rules for punishment of persons who
have committing international crimes as well as management of the environmental
management and the use of the seas & super adjacent airspace.
existence, how states may acquire territory, the law relating to the sea and sea-bed, laws
relating to the international use of force and warfare, the law relating to treaties, settlement of
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Hence contemporary public international law deals with the questions of how states come into
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international disputes, the laws governing human rights, international crimes as well as the law
relating to the treatment of aliens.
This is the contemporary scope of Public International Law which deals with
1. How states may acquire territory e.g. how did Kenya obtain the title to what we claim as
Kenya, because before 1963 Kenya was not a state or international legal person.
2. The law relating the sea, laws relating to use of force and warfare (International
Humanitarian Law); The 1949 Geneva Convention of the laws of war. Under this convention
even if you are my enemy and am fighting you; am supposed to be “sympathetic”. If you are
injured am under obligation to offer medical assistance. There are rules relating to the
treatment of POW.Cluster bombs are illegal.
3. Inter state treaties e.g. bilateral and multilateral.
4.
Settlement of dispute under the ICJ e.g. Kenya and Uganda on the Mingingo.Kenya
acquiesced .Kenya can not take Uganda to ICJ because ICJ does not have compulsory
jurisdiction. When we accepted the jurisdiction of the ICJ in 1964 we excluded the dispute
relating to common wealth.
5. International Crimes we are all aware of the Ocompo 6 now 3 (ICC).
6. Laws in treatment of aliens how are they treated e.g. do we give them national treatment or
preferential treatment e.g. if government nationalize all industries what will happen? It is not
only the treatment of aliens but their property as well.
International law is so dynamic that it has led and is leading to changes in the subject of
international law and its content. International law is a fast moving branch or strand of law.
Every day states are signing treaties and agreements and bringing areas or issues which were
not within the scope of international law to the realm of international law.
That is why we are saying that Public International Law is dynamic both in subject and content. Now
even individuals are subject to international law to the extent that their conduct is governed by
international law, to the extent that their rights are governed by international law, that is why we
have international .that is why we have international instruments e.g. the 1966 International
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Cultural Rights (which we have finally put into our constitution).Those are rights that are coming to
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Covenant of Civil and Political Rights, The 1966 International Covenant of Social Economical and
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the International Law.
If you look at the African Charter of the Human and Peoples Right, The African Charter of the Rights of
the Child. These are now within the international law. That is why we say that the scope and content
of International law is ever expanding.
PUBLIC INTERNATIONAL LAW AND PRIVATE INTERNATIONAL LAW
Private international law OR the Conflicts of Laws has little to do with Public International Law.
Private International law or Conflict of laws is that part of the private law of a country which
deals with cases having a foreign element, that is, contact with some system of law other than
that of the forum state.
Such a contact may exist for instance because a contract was made or was to be performed in a
foreign country or because a tort was committed there or because property was situated there,
or because the parties to a particular case or contract are non nationals of the forum state
E.g. You are sitting as a judge in the High Court in Nairobi and before you there is a couple from
Poland want to divorce the first question is you ask yourself is whether you have jurisdiction since the
marriage was solemnized in Poland, you will ask yourself whether Kenya recognizes this marriage
celebrated in Poland. Because this is a contract between parties who are non nationals. How do you
handle this?, that is where Private International Law comes in because we are dealing with an aspect
of laws other than Kenyan the forum state. You have to decide do we recognize this marriage ?If yes
you proceed if not you say you have no jurisdiction.E.g two Kenyan young men married in the UK,they
faked to get papers. Suppose they had filed the divorce in Kenya, where the constitution does not
recognize gay marriages, the judge will say that he has no jurisdiction because Kenya does not
recognize gay marriages even though in UK they are recognized. If you have two Ugandans enter a
contract one to export goods to Uganda but they bring the cases to Kenyan High Court (The judge will
ask the parties where the contract was signed and executed and say he has no jurisdiction).That is the
Private International Law or Conflict of law is a necessary part of the law of each country
because different countries have different legal systems containing different rules while Public
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essence of private International Law.
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International Law seeks primarily to regulate relations between sovereign states interse
(themselves) as well as other international legal persons.
In other words, Public International Law is at least in theory the same everywhere while rules of
Private International Law/Conflict of Laws are different from one country to country.
Historical Developments of Public International law
The modern system of Public International Law in its present order and structure is normally
traced back to The Peace of Westphalia 1648 which marked the end of the 30yrs war in Europe.
However, it was not then that International relations started (International Relations started
much earlier). Evidence of rules and procedure in regarding international law date back over
5000 years.
From the earliest times, rules of conduct to regulate relations between independent
communities were felt necessary and emerged from the usages observed by these communities
in their usual relations.
Inter-state agreements, immunities of emissaries and certain laws and usage of war existed in
the Middle Ages before the dawn of Christianity e.g. in Egypt and India.
For instances in 1400 BC the Egyptian Pharaoh Ramses II concluded a Treaty of Peace, Alliance
and extradition with the King of Chetta which recognized territorial sovereignty over certain
areas of each ruler and provided for the extradition of refugee and exchange of diplomatic
envoys.
We shall see later that diplomatic immunities of foreign diplomats as we know it today did not start
yesterday, it started long time ago because diplomats were regarded as messengers and as
messengers they enjoyed certain privileges and rights in order to facilitate their work.
There were also historical cases of recourse to international arbitration and mediation in ancient
Greece, China and the early Islamic World.
In the period of the Greek City States there developed some international law though regionally
limited composed of customary rules which have crystallized into law from longstanding usages
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neighboring state.
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followed by these states not only in their relations interse but also as between them and the
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Underlying the rules were deep religious influences characteristic of an era in which the
distinction between law, morality, justices and religion were not sharply drawn.
NB: One of the sources of International Law is customs and customs develop from state practice.
The Roman Civilization before its period of expansion and conquest made treaties with Latin
cities under which Latins and Romans were given rights in each other courts and promised
mutual co-operation.
Once Rome became an empire, the Romans organized their relations with foreigners on the
basis of what was called Jus Fetiale and Jus Gentium.
The Jus Fetiale consisted of religious rules which governed Romans external relations and
formal declarations of war which inter alia recognized the inviolability of the Ambassadors and
was at the origin of the distinction between just and unjust war.
On the other hand, Jus Gentium was the Roman solution to the necessity of regulating legal
relations between Roman citizens and foreigners .(It is the Jus Gentium that gave rise to Public
International Law)
A special magistrate Praetor Peregrinus (whose function it was to oversee all legal relationships,
including bureaucratic and commercial matters, within the empire) was appointed in 242 BC
who created the law Jus Gentium acceptable to both Romans and Foreigners.
This law was the first truly international law although it essentially regulated relations between
private individuals.
It was based on the commercial law in use in the Mediterranean trade referred to as Jus Civile
that is the law applicable to relations between Roman citizens in its less formalistic fashion and
based on the principles of equity and good faith.
The distinction between Jus Civile and Jus Gentium was blotted out when Roman citizenship
was granted to all male inhabitants of the empire in 212 A.D.
However, Jus Gentium did not disappear but became an essential part of Roman law and greatly
influenced all European Legal Systems and through them Public International Law.
From Ancient Rome, International Law also inherited the Doctrine of the Universal Law of
Nature known as Natural Law which was developed by the Stoic philosophers of ancient Greece
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and adopted by the Romans.
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This doctrine considered law as the product of right reason emanating from assumptions about
the nature of man and society.
Because natural law is the expression of right reason inherent in nature and man and
discoverable by reason, it applies universally and it is unchanging and everlasting.
In the middle ages, two sets of international law namely Lex Mercatoria (Law Merchant) and the
Maritime Customary Law developed to deal with problems that transcended international
boundaries.
With the revival of trade in the 10th century, merchants started to travel all over Europe in order
to sell, buy and place orders for various goods.
These commercial activities required the establishment of a common legal framework. Out of
necessity, the European merchants created their own rules of conduct on fair dealing which
formed Lex Mercatoria.
During the same time, maritime customs and usages were formed. The high seas were no man’s
land but with the development of Maritime Commerce it became necessary to establish some
rules and standards.
The rules of the high seas were based on what was called the Rhodian Sea Law, a codification
undertaken under the Byzantine Empire were compiled into widely recognized collections that
became accepted through out Europe.
The middle ages also saw the rise of nation states that led in turn to the process of the
formation of rules of customary international law from usages and practices followed by such
states in their mutual relations.
For instance, there were the microscopic Italian states that maintained diplomatic relations with
each other and with the outside world that led to the development of certain rules relating to
diplomatic envoys and their inviolability.
FOUNDERS OF MODERN INTERNATIONAL LAW
During the same time, a number of jurists began to consider the evolution of the communities
of independent sovereign states and to develop different problems of the law of nations
(sovereign states) recognizing the necessity of some body of rules to regulate certain aspects of
Where there were no established customary rules, these jurists devised un-fashioned working
principles by reason of analogy.
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relations between such states.
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Not only did they draw from the principles of Roman law but also they had recourse to the
precedence of ancient history, theology, canon law and the semi theological concept of the law
of nature.
Among these early jurists were Francisco de Vitoria (1480-1546) of the Spanish school of
international law (Professor of Theology at the University of Salamanca) whose treaties
Reflectionis de Indis Noviter Inventis confirmed the universal validity of international law and
its application in the Americas:
The Italian school of Law representative Alberico Gentili (1552-1608) who conceived the law of
nations as a universal and natural law applicable between independent pre states and free
common wealth.
Hugo Grotius (1583-1645), a Dutch scholar considered the greatest of the early writers of
international law. His treaties De Jure Belli Ac Pacis (On Law of War and Peace) which first
appeared in 1625 has been acknowledged as the 1st comprehensive and systematic treatise of
positivist’s international law.
One central doctrine in Grotius treatise was the acceptance of the law of nature as an
independent source of the rule of law of nations apart from customs and treaties.
His work was continually relied upon as a point of reference and authority in the decisions of
courts and text books and later writers of standing.
Besides his earlier work Mare Liberum (The Free Sea) (1609) distinguished Grotius as the
historic standard bearer of the doctrine of the freedom of the seas.
In his work, Grotius argued that it would be against natural law to rule over the sea because no
country was able to monopolize control over the ocean because of its immensity, lack of
stability and lack of fixed limit.
The evolution of international law during the two centuries after Grotius was marked by the
final evolution of the modern state system in Europe. A process that was greatly influenced by
the Peace of Westphalia 1648.
The major countries of Europe had been involved in the war which started in 1618 for religious
reasons namely the struggle between Catholic and Protestant countries but had soon turned out
to be an all-out struggle of military and political hegemony in Europe.
The Treaties of Peace were signed in the Westphalia towns of Munster and Osnabruck but are
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The Treaties constitute a watershed in the evolution of the modern international community
and legal order. Because
1. First, they recognized Protestantism at an international level and consequently
legitimized the existence of states based on Calvinism and Lutheran faith. Hence forth,
even from the point of view of religion, it was recognized that the state was
independent of the church.
2. Secondly, the treaty granted the members of the Holy Roman Empire the Jus
Foederationis that is the right to enter into alliances with foreign powers and to wage
war provided that those alliances or wars were neither against the empire nor against
public peace and the treaty. Consequently, a number of small countries were upgraded
to members of the international communities with almost sovereign rights.
3. Thirdly, the treaties crystallized a political distribution of power in Europe that saw the
decline of the Church and the de facto disintegration of the empire and the birth of an
international order based on a plurality of independent states recognizing no superior
powers or authority over them.
Accordingly, the treaties recognized the principles of
a) Sovereignty
b) Territorial integrity and
c) Equality of states as independent members of an international system.
The period from the Peace of Westphalia to the Congress of Vienna in 1815 is considered as a
period of formation of classical international law.
The period witnessed the breakup of the feudal state system and the formation of society into
free nation states.
The congress of Vienna ended 25 years of the Napoleonic War in Europe. It was convened by
four European powers which had defeated Napoleon whose main objective was to establish a
balance of powers of political forces in Europe which would ensure lasting peace and maintain a
status quo in Europe by repressing political revolutions.
International law greatly expanded during the rest of the 19th Century mainly due to
c) modernization of the world transport,
d) the greater destructiveness of modern warfare and
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b) the expansion of European influence overseas
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a) the rise of powerful states in and outside Europe
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e)
Influence of new inventions.
All these made it urgent for international societies of states to acquire a new system of rules
which would regulate in an ordered fashion conduct of international states affairs.
There was remarkable development in the law of war and neutrality and great increase in
adjudications in international arbitral tribunals as provided sources for rules and principles.
Besides, states commenced to acquire the habit of negotiating of general treaties in order to
regulate the affairs of mutual legal concerns.
Throughout this period, international law was based on five principles namely;
1. Sovereignty
2. Balance of powers
3. Legitimacy of government (Legitimacy in the sense of restoration of legitimate
government to power and prevention of political revolutions)
4. Nationality
5. Equality
Other important developments took place in the 20th century;
1. The Permanent Court of Arbitration (P.C.A) was established by the Hague conferences
of 1899 and 1907. Following WW1, the League of Nations was created as an
international organization designed to prevent the recurrence of armed world conflicts.
2. The Permanent Court of International Justice: was set up in 1921 as an authoritative
International Judicial tribunal.
3. Both The League of Nations and The Court were succeeded in 1946 by the U.N
organization and the International Court of Justice (ICJ) respectively established after
WWII.
4. There was also the creation of Permanent International Intergovernmental
Organizations whose functions are in effect with those of world government in the
interests of peace of the world and human welfare e.g. ILO, FAO, ITU, WHO etc
The scope of international law was also expanded to cover not only every kind of economic and
e.g. law of the sea, environment, nuclear energy, international crime, communications and
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human rights and interests affecting states.
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social interests affecting states but also the vast and complex areas of international concerns
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As a result, the influence of writers (e.g. Grotius) has tended to decline with the consequence
that international law rules have been positively tailored to cater for modern developments in
technology, economic exigencies and social economic and political affairs of the world.
The last century (20th Century) also witnessed a great number of multilateral treaties laying
down rules to be observed in interstate relations as well as rules of arbitration to settle
international disputes.
At the same time International Court of Justice has made an important contribution to the
development of international law jurisprudence.
Similarly, the International Law Commission since its inception in 1947 by the UN General
Assembly has worked on the codification and progressive development of international law
thereby ensuring greater certainty and stability.
Customary Rules of International Law have also been codified given greater precision and
specificity.
Finally, the last century also witnessed massive participation of the newly independent states of
Africa, Asia and the Pacific in the International Law making.
From a relatively small membership of 42 states in 1919 when the League of Nations was
created, the UN currently has a membership of 193 states.
These newly independent states realized that many international law rules did not fully respond
to their needs and reflect their concerns and hence taken an active part in the re-adjustment of
the old rules to the new economic and political realities.
The impact of this new development is reflected in the content and scope of contemporary
international law namely, the shift from Euro centrism to Universalism thereby diminishing the
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Western European Supremacy over International Law.
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LECTURE 2: 25TH JANUARY 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 2: THE BASIS OF OBLIGATION IN INTERNATIONAL LAW
For quite a long time there has existed the controversy as to whether or not international law is
true law.
Some jurists have argued that International Law is positive law whereas others have maintained
that IL is only a body of rules of International morality.
One theory that has enjoyed wide acceptance is the positivists theory law that IL is not true
law.
John Austin a 19th century positivist is the main protagonist of this theory. Others who have
questioned the legal basis of International Law are English philosophers like Thomas Hobbes,
Jeremy Bentham and the German jurist Samuel Von Pufendorf.
Austin argued that International Law is not really law because it has no sovereign.
His attitude towards International Law was influenced by his theory of law in general. He
defined “laws properly so called” as commands of a sovereign.
According to him a sovereign is a person who receives the habitual obedience of the members
of an independent political society and who in turn did not owe such obedience to any person.
Rules of international law did not qualify as rules of positive law by this test and not being
commands of any sort were placed in the category of “laws improperly so called.”
According to Austin International Law was positive international morality only, analogous to
rules binding a club or a society. Austin further described international law as consisting of
“opinions or sentiments among nations generally.”
REACTION TO AUSTIN’S POSITIVIST THEORY
Positivism has been objected to a number of grounds
1. Modern historical jurisprudence has discounted the force of Austin’s general theory of
law in that there is no legal system that conforms to his concept. Modern jurisprudence
has shown that in many communities without a determinate sovereign legislative
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differ in its binding operation from the law of any state with a true legislative authority.
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authority a system of law was enforced and being observed and that such law did not
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2. Austin’s views about international law however right for his time are not true of the
contemporary international law. Because in the last one century or so a great number of
international law rules has come into existence as a result of law making treaties and
conventions and the proportion of rules of customary international has correspondingly
diminished. Even if it be true that there is no determinate sovereign legislative authority
in the international field, the procedure for the formulation of rules of international law
by means of International conferences
or through existing international institutions is
practically a settled and efficient as any state legislative procedure.
3. Thirdly questions of international law are always treated as legal questions by those who
conduct international business in various foreign offices or through various existing
international bodies. The agencies do not consider international law as merely a moral
code. In his Oxford lectures in 1890, Sir Fredrick Pollock sums up the issue in this way
namely “if international law were only a kind of morality, the framers of state papers
concerning foreign policy would throw all their strength on arguments. But as a matter
of fact, this is not what they do. They appeal not to the general feeling of moral
rightness, but to precedents, to treaties and to opinions of specialists. They assume the
existence among statesmen or publicists of a series of legal as distinguished from moral
obligations in the affairs of nations.”
Furthermore the legally binding force of international law has been severally asserted by the
nations of the world in international conferences. For instance the UN Charter is both explicitly
and implicitly based on the true legality of international law where as Article 38 of the Statute
International Court of Justice states that the function of the court is to decide “in accordance
with international law” that such disputes are submitted to it.
Austin confused rules of international law proper with rules of Comitas Gentium (International
Comity) the later being rules of good will and civility founded on the moral right of each state to
receive courtesy from other states.
Non observance of a rule of international law may give rise to a claim by one state against
others for some kind of satisfaction whether it be diplomatic in character or it takes the
The concept of the law of nature exercised a great influence on the development of
International Law.
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does not give rise to a legal claim).
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concrete form of indemnity or reparation. It is otherwise for rules of International Comity i.e. it
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Several theories of the character and binding force of International Law were founded upon it.
The law of nature denoted the ideal law founded on the nature of man as a reasonable being i.e.
the body of rules which nature dictates to human reason.
The essence and relevance then is that states submitted to international law because their
relationship were regulated by the Higher law, the law of nature of which international law is
part.
The traces of the natural law theories still exist today although in a much less dogmatic form.
An approach a kin to that of natural law colours the current movement to bind states by
International covenants to observe human rights and fundamental freedoms and provides
justification for the punishment of individuals guilty of gross violation of human rights such as
brutal war crimes and genocide.
Because of its rational and idealistic character, the concept of the development of the law of
nature has had a tremendous influence on the development of international law.
It has generated respect for international law and provided moral and ethical foundations.
However its main defect has been its aloofness from the realities of International relations
shown in the lack of emphasis in the actual practice of state in their mutual relations although
the majority of rules of international law originally sprung from these practice.
They believe that international law can in logic be reduced to a system of rules depending on
their validity only of the fact that the state have consented to them.
Pursuant to their initial assumptions the positivist regard international law as consisting of those
rules which the state wills have accepted by a process of voluntary self restriction or Auto
Limitation.
Under this theory state as independent and free agents can only be obliged to comply with
international law rules if they had first agreed to be so obliged.
Without such manifestation of consent international law would not be binding on the society of
state.
The positivists do concede however that the difficulty in the application of their theory relates
to customary international law. They admit that it is sometimes impossible to find an express
rules.
They therefore argue in such exceptional cases the consent must be regarded as implied.
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consent in treaties, state papers, and diplomatic note to being bound to particular customary
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They carry this reasoning a step further by arguing that membership to the society of state
involve an implied consent to the binding operation of customary international law.
One of the leading positivists is the Italian Jurist Anzilotti (1867-1950) a one time judge of the
Permanent Court of Justice (1921-30).
In his view the binding force of international law can be traced back to one supreme
fundamental principle or norm namely agreements between states are to be respected and
carried on good faith or as the principle is better known as “PACTA SUNT SERVANDA”.
Pacta Sunt Servanda is an absolute postulate of the International legal system and manifests
itself in all rules of international law consistent with this view Anzilotti holds that just in the case
of treaties customary rules are based on the consent of state and there is an implied agreement.
However the positivist explanation of the binding obligation of international law has been
objected to on a number of grounds
1. The notion of state wills is purely metaphorical and is used to express the fact that
international law is binding on state. It does not explain why international law is binding.
The state wills is infact the wills of individuals who govern the state. The states are
composed of individuals and state policies are controlled by individuals.
2. It is difficult to reconcile the fact with a consensual theory of international law. In the
case of rules of customary law. There are many cases where it is impossible to find any
consent by the state to the binding effect of international rules (Rules Jus Cogens).See
UN Charter Article 2 (4).Besides the consensual theory break down in the crucial case of
a new state admitted in the family of nations. Such new state is bound by international
law from the date of its birth without an express act of consent. The idea that in such a
case there is a tacit (an implied) consent is untenable because the other state look to
the new state to comply with a whole body of international law.
3. It is never necessary in practice in invoking customary international law against a
particular state to show that the state has consented to it diplomatically .The test
applied is one whether the rule is generally recognized by the sovereign state.
4. There are concrete examples today of treaty rules particularly those lied sown by “law
making treaties” having an incidence upon state without any form of consent expressed
ensure that states that not members of the UN act in accordance with the principles of
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charter as may be necessary for the maintenance of peace and security. It is fallacious to
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by or attributable to them e.g. Article 2 (6) of UN Charter provides that the UN shall
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insist that some consensual manifestation is necessary before international law can bind
to a state.(Differentiate with conventional treaty rules)
OBSERVANCE AND ENFORCEMENT OF INTERNATIONAL LAW
a) OBSERVANCE
As distinguished from municipal law no world government or effective institutional machinery
has yet been developed for the application and enforcement of international law.
Existing judicial agencies including the ICJ are by passed more frequently than they are utilized
and even these agencies cannot be regarded as the true enforcers of the law. (ICJ does not have
compulsory Jurisdiction)
International law does not poses the equivalent of a hierarchy of tribunals under which a case
can move from lower to higher levels in the form of an appeal.
Besides there is no effective authority for the enforcement of decisions or a word handed down
by the available court and tribunals. (Ref to Article 94)
What then ensures that rules of International law are observed by states? There are at least
Three factors that motivate compliance of international law.
1. States are naturally interdependent in many ways and international law facilitates these
corporations. For instance states have a common interest in International
communications and disease eradication. These are areas where an action on
International scale is essential and hence states will obey rules of International law on
these issues. (e.g. Rules of ITU,ICAO and WHO)
2. States have to co - exist with one another and a means of doing this is to define their
relationships by making treaties and other consensual agreements. At this level
obedience is high and the law is generally effective. Besides, the concept of reciprocity
plays an important role in ensuring that international stability is maintained. (e.g The
Lake Victoria Basin Authority for the 3 East African States)
3. International Law has an important role to play in Inter-state relations by keeping the
4. Another factor in the promotion of obedience to the rules of International law is world
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Public opinion which finds expression in world fora such as United Nations General
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breach of rules of conduct to a minimum and thereby ensuring conflict avoidance.
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Assembly. The reactions in the traditional sense of states men and of peoples of global
scale act as a deterrent towards the breach of rules of international law.
b) ENFORCEMENT
Unlike the municipal law systems where the machinery for enforcement is centralized in
Government authority, in international law it is of necessity decentralized since the primary
subjects and actors of international legal order are states.
Traditionally in decentralized order enforcement of law is accomplished through self help by
individuals injured by the delict or illegality.
However the system established under the UN Charter and before it the League Covenant of the
League of Nations was designed to ensure that member states obey and respect International
obligations deriving from these legal instruments. E.g The use of force except in self defense is
now illegal. (Article 51)
Diplomatic protests are the traditional pacific/ peace method of preserving the integrity of
international law. Such protests will commonly be coupled with demand that the wrong done be
righted in an appropriate manner. Although minor violations might be corrected in such
consequences of such protests, major international violations would most cases remain
unaffected by the lodgment of diplomatic protests.
If disagreement about claim violations persists a variety of devices can be called into play to
secure compliance with the law. These include mediation by a third party, reference to a
commission of enquiry or conciliation, reference to an arbitral tribunal or an International Court
in order to effect compliance with the law. However, arbitration can be effected only if the
violator of the law agrees to such settlement procedure.
Compliance may be secured through reference to and subsequent actions by a universal or
regional international arrangement or international organizations such as the UN Security
Council or General Assembly or the African Union, European Union or the Organizations’ of
American States. Such a reference would initially secure publicity for the alleged failure to
comply with the rules of the law and possible public condemnation of the delinquent state. It
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state.
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might more importantly lead to the imposition of a variety of sanctions against the offending
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Failure to achieve compliance through this method may bring into being the imposition of
sanctions such as boycott, embargos, reprisals and pacific blockades adopted at the behest of a
regional or universal agency. Pacific blockades (e.g. Cuban missile crisis (1962))
In addition the offending state may be suspended or even expelled of membership on
International agency and accordingly deprived of benefits accruing from such membership as
well as of the ability to vote on decisions and policies of the agencies. (For example SA was
suspended from the UN till 1994)
Finally the ultimate sanction of military force could be employed to secure compliance with
international law. However the legal standing of such an action would be clouded in view of the
precise provisions of the UN Charter and of the obligations assumed there under by members of
the UN. (Cap 7 of the UN Charter)
PRACTICE QUESTION ONE
Most International law is found either in internal agreements or in rules based on customs. That much
is not controversial. The question that has haunted international law advocates, and that has fueled
skepticism of critics is: Is International Law properly called “Laws” and why it is binding on “sovereign”
states? ANON
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Critically analyze the nature and role of International Law in the light of above statement.
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LECTURE 3 AND 4: 1st AND 2ND FEBURUARY 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 3: SOURCES OF INTERNATIONAL LAW
The phrase “sources of law” and hence a source of International Law is ambiguous because it
refers to both formal sources and material sources.
A formal source refers to the legal procedures and methods for the creations of rules of general
application legally binding the persons or bodies at whom they are directed.
Material sources on the other hand provide evidence of the existent of rules which when
proved have the status of legally binding rules of general application. In other words a formal
source is that from which a rule of law derives its force and validity. The material sources supply
the substance of the rule to which the formal sources give the force and nature of law.
For instance a rule will be legally binding if it meets the requirement of the custom which is in
itself a formal source of International Law and each substance will be indicated by state practice
which is the material source of the custom.
In the context of International Law however, we cannot talk of formal sources since
International Law lacks the constitutional legislative machinery akin to that of Municipal law
under which statutes are binding by reason of fundamental supremacy.
N/B Hence the term sources of IL refer to Material sources.
By “Sources of International Law” is meant the process or means by which rules of international
law are created or determined.
Because there is no International equivalent legislature, the rules of International Law are of
quite a different nature from those of municipal law and are overwhelmingly derived from
either or both of the two major sources enacting legally binding obligations namely:
i.
Treaty (and/or)
ii.
Customary International Law
In the domestic reach the source of a rule or law is seldom controversial.
Common Law systems like Kenyan rely upon statutes and decisions to be found in court
Civil law systems rely upon the appropriate legislation or courts.
It is rarely necessary in either system to inquire whether a legal rule is in fact a legal rule and its
existence and if its interpretation will be uncontroversial.
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judgements, for evidence for the existence of the said rule.
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International Law presents different problems notably because there is no absolute agreement
about what constitute a source of international law.
International Customary Law presents particular difficulties and many cases termed on whether
the existence of a particular customary rule can be proved.
However the closest approximation to an authoritative list of the relevant international law and
the one that is often cited is found in Article 38 paragraph 1 of the ICJ Statute
Article 38 of the ICJ Statute
1. The Court, whose function is to decide in accordance with international law such disputes as are
submitted to it, shall apply:
a) International conventions, whether general or particular, establishing rules expressly
recognized by the contesting states
b) international custom, as evidence of a general practice accepted as law;
c) the general principles of law recognized by civilized nations ;
d) Subject to the provisions of Article 59, judicial decisions and the teachings of the most highly
qualified publicists of the various nations, as subsidiary means for the determination of rules of
law.
2. This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereto.
Read also Article 59 of the ICJ Statute
Article 59 of the ICJ Statute
The decision of the Court has no binding force except between the parties and in respect of that
particular case.
This provision adopted from the same article of the statute of the Permanent Court of
International Justice which operated under the auspices/support of Legal Nations provides that
a) International conventions whether general or particular establishing rules expressly recognized
by the contesting states.
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submitted to it shall apply
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the court whose function is to decide in accordance with international law such disputes are
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b) International custom as evidence of general practice accepted as law.
c) The general principles of law recognized by civilized nations.
d) Subject to the provisions of article 59 judicial decisions and the teachings of the most highly
qualified publicists of various nations as subsidiary means for the determination of rules of law.
The effect of applying Article 38 (1) (a-d) is that the court will be applying International Law
(The Court, whose function is to decide in accordance with international law such disputes as
are submitted to it, shall apply……)
Article 59 provides that the decisions of the ICJ have no binding force except between the
parties and in respect within that particular case.
Article 38 (1) does not form the equivalent of municipal law of precedent.
Article 38(2) the court is empowered to decide a case ex aequo et bono (if the parties agree
there to).
The court can under this provision ignore rules which are the product of any of the above law
creating agencies /processes and substitute itself as a law creating agency depending on the
agreements of the parties to the dispute before it.
This is for practical purposes; because it enables the court to avoid the pronouncement of what
is technically called a non liquet -A situation where the ICJ finds there is no treaty ,customary,
general principles, writings and then decides to throw in the towel. (Inability or impossibility to
decide as no applicable rule has been found) this has never happened in practice.
The various sources enumerated by Article 38 of the ICJ Statute may be applied simultaneously
and as such the order of enumeration does not constitute a hierarchical order.
Besides, Article 38 is not exhaustive because on the one hand it envisages sources of
International Law from a strictly jurisdictional perspective and on the other hand being a text
adopted more than 90 years ago it does not take into account the evolution of International
law. (Remember the Article was adopted from the 1920 Permanent Court of International
Justice)
For instance acts and decisions of International organizations which have greatly contributed to
the formation and growth of International law are not mentioned under Article 38 (1).
We will address each of the sources mentioned under Article 38 (1) in a little more detail.
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1. CONVENTIONS AND TREATIES (GENERAL AND PARTICULAR)
By way of Definition: A treaty or convention is any international agreement entered into by two
or more states or any other international law persons and governed by International law.
A distinction is normally made between law making treaties i.e. laws, treaties which lay down
rules of general or universal application (multilateral treaties) and treaty contracts that is those
that are entered into between two states dealing with a particular matter between or
concerning those states exclusively (bilateral treaties).
Whether multilateral or bilateral, treaties is a direct source of rights and obligations for the
parties and represents a source of international whose importance is ever increasing.
In the event of a dispute between the parties to the treaty terms thereof will constitute the law
to be applied by the court.
Treaties may impose duties to enact legislation or may offer areas of choice within which states
are to apply the principles laid down therein.
They may also be either confirmatory of or represent a codification of pre existing rules of
customary International Law such as the 1961 of Vienna conventions of Diplomatic
Conventions.
States or other International Law persons are bound by treaties which have been regularly
concluded and have entered into force under the principle of PACTA SUNT SERVANDA.
Under this principle parties to treaties are bound to observe and carry out their obligations in
good faith.
This principle which in itself is a rule of customary International Law is the basis of positive
International Law upon which the entire super-structure of contemporary International Law
depends.
The function of treaties is however limited by two factors:
1. Treaties bind the parties thereto only and not non parties. The legal position of non
parties cannot be modified without their consent that is to say that legal rights cannot
be conferred and duties imposed on 3rd parties without their consent.
2. This is provided by the principle of JUS COGENS. Under this principle the states
freedom to conclude treaties is limited by the fact that parties to a treaty cannot
agree under treaty to violate the peremptory norms (can’t be derogated, they are
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binding).For instance parties to a treaty cannot agree to wage war against a 3rd party or
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to engage in slave trade when these are prohibited by International Law. See for
example Article 2 (4) of the UN Charter (Talks of No War) and Article 51 (Response by
Self Defense).
ARTICLE 2 OF THE UN CHARTER
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfil in good faith the obligations assumed by them in accordance with the
present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against which the
United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance of
international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter VII.
ARTICLE 51 OF THE UN CHARTER
measures necessary to maintain international peace and security.
Measures taken by Members in the exercise of this right of self defense shall be immediately reported
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armed attack occurs against a Member of the United Nations, until the Security Council has taken the
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Nothing in the present Charter shall impair the inherent right of individual or collective self defense if An
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to the Security Council and shall not in any way affect the authority and responsibility of the Security
Council under the present Charter to take at any time such action as it deems necessary in order to
maintain or restore international peace and security.
2. CUSTOMS
Until recently the rules of general International Law were all customary rules.
Although most of these still exist they have been modified so as to be adapted to the changes in
contemporary International relations.
The rules of customary international law evolved after a long historical process culminating into
their recognition by International community.
In order for a custom to give rise to a binding rule it must have been practiced and accepted as
obligatory by the international community.
State practice distinguishes between general and regional custom.
General customs are those customary rules that bind the International community as a whole
whereas local or regional customs are those applicable to a group of states or just two states in
their relationship inter se ( among themselves).
ELEMENTS OF CUSTOMARY INTERNATIONAL LAW
A) DURATION (How Long the Custom has been Practiced)
The jurisprudence of International Tribunals including the ICJ indicates that no particular
duration is required for a particular practice to give rise to a rule of law provided the
consistency and generality of the practice are proved.
Conduct to be creative of a rule of customary law must be regular and repeated.
In the North Sea Continental Shelf Cases, the ICJ stated that there is no precise length of time
during which the practice must exist. It is simply that it must be followed long enough to show
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that other requirements of a custom are satisfactory. The court stated:
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CASE 1
North Sea Continental Shelf Cases,
“ although the passage of a short period of time is not necessarily, or of itself, a bar the formation of a
new rule of customary international law on the basis of which what was originally purely conventional
rule, and indispensable requirement will be that within the period within question short though it might
be , state practice including that of states whose interest are specially affected, should have been both
extensive and virtually uniform the sense of the position invoked- and should moreover have occurred
in such a way as to show general recognition that a rule of law or legal obligation is invoked.”
B) UNIFORMITY AND GENERALITY
Major inconsistencies in practice will prevent the creation of a rule of customary international
law.
However, complete uniformity is not required and minor inconsistencies will not prevent the
creation of a customary rule provided that there is a substantial uniformity.
In other words for state practice to give rise to binding rules of customary international law, that
practice or rule must be uniform, consistent and general and must be coupled with a belief
that the practice is obligatory rather than habitual.
This is illustrated in the Asylum Case
CASE 2
Asylum Case
The case was between Colombia and Peru.
After an unsuccessful rebellion in Peru in 1948, a warrant was issued for the arrest on a criminal charge
arising out of the rebellion of one of its leaders Haya De la Torre a Peruvian National. He was granted
Colombia sought but Peru refused a safe conduct to allow Haya de la Torre out of the country. Colombia
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brought this case against Peru asking the ICJ to rule inter alia that
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asylum by Colombia in its Peruvian embassy in Lima.
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a) Colombia as the state granting asylum was competent to qualify the offence for the purposes of
the said asylum.
b) Colombia argued for such a ruling on the basis of both treaty provisions and “American
International in general.”
The court pronounced, “the party which relies on a custom of this kind must prove that this custom is
established in such a manner that it has become binding on the other party. The Colombian
Government must prove that the rule invoked by it is in accordance with a constant uniform usage
practiced by the states in question, and that this usage is the expression of a right appertaining to the
state granting the asylum and a duty incumbent on the territorial state --- the facts brought to the
knowledge of the court disclosed so much uncertainty and contradiction, so much fluctuation and
discrepancy in the exercise of diplomatic asylum and in the official use and views expressed on
different occasions; there has been so much inconsistency in the rapid succession of conventions on
asylum, ratified by some states and rejected by others, and the practice has been so much influenced
by considerations of political expediency in various cases, that it is not possible to discern in all these
any constant and uniform usage accepted as law.”
(Colombia proved that this is a duty)
The generality of the practice is an aspect which complements consistency.
The practice need not be universal in that what is important is that a substantial number of
states practice or apply the custom.
C) OPINIO JURIS EST NECESSITATIS
To assume the status of customary international law the rule in question must be regarded by
state as binding in Law i.e. the states must regard themselves as being under a legal obligation
to follow the practice.
This sense of a binding legal obligation is referred to as Opinio juris et neccesitatis and is what
distinguishes rules of customary international law from rules of International Comity which are
simply based upon a consistent practice of state not accompanied by any feeling of legal
obligation.
as law.” It must be proved that the state following a particular customary rule do so out a duty
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Article 38 (1) (b) of the ICJ Statute refers to custom as evidence of a “general practice accepted
of binding legal obligation. In other words the proponent of the custom must establish a general
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practice and having done this in a field which is governed by legal categories the tribunal can be
expected to presume the existent of an opinion jurist.
The distinction between International rules which create a legal obligation and those which
simply permit a state to act in a certain way was illustrated by a Permanent Court of
International Justice in the SS Lotus Case between France and Turkey.
CASE 3
SS Lotus Case
A French steamer and a Turkish Collier collided on the High seas. As a result the Turkish collier sank and
a part of its crew and passengers lost their lives. But the French steamer having put port in Turkey
voluntarily the officers on watch on board at the time of collision were arrested tried, convicted of
involuntary man slaughter by the Turkish authorities.
France protested against the Turkish exercise of jurisdiction on the basis that this was in violation of the
international law.
The question before the court was whether Turkey had the jurisdiction to try the French officers of a
French Merchant ship for the collision. France argued that Turkey had no right to institute criminal
proceedings because the flag state of the vessel alone had jurisdiction over act performed on board of
the vessel on the High seas.
Turkey argued in response that vessels on the high seas form part of the territory of the flag state and
further that the criminal legislation of a sovereign state is not bound to keep within the limits of
territorial and personal jurisdiction. It therefore, asserted that in the absence of a rule to the contrary
there was a permissive rule empowering it to try the French officers.
France however argued that there was a customary rule imposing a duty on Turkey not to try the
officers because previous state practice showed that, “questions of jurisdiction in collision cases are but
In rejecting the French argument the court stated, “ even if the rarity of judicial decisions to be found
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among the reported cases were sufficient to prove the circumstances alleged by the French
government it would merely show that states, had often, in practice abstained from instituting
criminal proceedings and not that they recognized themselves as being obliged to do so; for only if
such abstention were based on their being conscious having a duty to abstain would it be possible to
speak of an International custom. The alleged fact does not allow one to infer that states have been
conscious of having such a duty.”
The court found that there was no customary rule conferring exclusive penal jurisdiction in matters of
collision on the high seas on the flag state because state laws were inconsistent, decisions of municipal
courts conflicted no uniform trends and would be deduced from treaties and publicists were divided in
their views.
See also the North Sea Continental Shelf Case
CASE 1 (Already Mentioned Above)
North Sea Continental Shelf Case
Netherlands and Denmark were parties to Article 6 of the 1958 Geneva Convention of Continental Shelf
which stated that delimitation was by the equidistance principle while Germany was not a signatory of
the convention.
Netherlands and Demark are adjacent (and parties to the convention) while Germany which is on a
conclave coastal gradient preferred another principle since using the equidistance principle would mean
that they get a smaller share.
Being a non-signatory of the said convention Germany felt that they are not bound by Article 6 of the
said convention while Netherlands and Denmark contended that Germany is bound because it has been
codified of pre-existing customary international law and state practice.
In this case an attempt was made to show that the 1958 Geneva Convention of the Continental Shelf in
general and Article 6 thereof dealing with the median line delimitation of the adjoining areas of
A number of bilateral agreements had been made drawing lateral median line delimiting boundary lines.
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continental shelf in particular had become part of customary international law.
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between the Netherlands and federal Republic of Germany in 1964 and Denmark and Federal Republic
of Germany in 1965.
Each of these last two agreements however did more than drawing a dividing line from a short distance
from the coast beginning at the point at which the land boundary of two states concerned was located.
Further agreement proved impossible special agreements were concluded between Netherlands and
Federal Republic Germany and between Denmark and Federal Republic Germany referring the matter to
the ICJ (They signed a compromise this is an agreement to refer a matter before the ICJ bilaterally)
In both agreements the question put before the court was what principles and rules of international law
are applicable to the delimitation between the parties of the continental shelf in the North Seas which
appertains to each of them beyond the partial boundary already determined (1964/65) respectively?
The governments of Demark and Netherlands argued that Article 6 (2) of the 1958 Geneva Convention
of Continental Shelf providing for “equidistance, special circumstance principle” embodied stated or
crystallized customary international law and therefore asked the court to declare that the delimitation
of the said areas was governed by principles and the rules of the said convention.
However the Federal Republic of Germany was not at the relevant time a contracting party to the said
convention hence it denied the Danish and Dutch agreement and instead proposed the doctrine of “Just
and Equitable Share”. It argued further that the principles espoused by the governments of Denmark
and Netherlands had the effect on a conclave coast line such as one shared by the three states
concerned of giving the state in the middle (in this case Federal Republic of Germany) a smaller
continental shelf as it might otherwise obtain.
The courts refused to make the declaration sort by the Netherlands and Denmark holding that Article 6
of the Geneva Convention on Continental Shelf did not embody or crystallize any pre-existing or
emergent rule of customary international law and therefore the equidistant principle for delimiting
jurisdiction over the continental shelf could not bind states such as the Federal Republic of Germany
which had not ratified the convention.
The court stated “…. To constitute the opinion juris sive necessitates ….two conditions must be fulfilled
1. Not only the Act concerned amount to a settled practice but there must also be such or carried
out in such a way as to be evidenced of a belief that this practice is rendered obligatory by
existence of a rule of law requiring it. The need for such a belief i.e. the existence of a subjective
2. The states concerned must therefore feel that they are conforming to what amounts to a legal
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obligation. The frequency or even the habitual characteristic of the act is not in itself enough.
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There are many international acts which are performed almost invariably but which are motivated by
consideration of courtesy, convenience or tradition not by any sense of legal duty”.
The court accepted that a provision in a treaty could indeed generate a rule in customary international
law which would be binding on a third party ,however it indicated that this process is not to be lightly
inferred (lots of evidence is required).
For a treaty provision to become binding as a rule of customary international law party invoking the rule
must be in a position to show that the rule meets all the general requirements for the creation of
customary international law.
D) PROOF OF CUSTOM
In order for a rule of customary law to develop it must at some stage be possible to imply from
the conducts of state that between them it is regarded as a matter of legal duty that they should
discharge or act in a certain way.
Where a particular state or group of states persistently object to the rule being extended to it,
that state or group will not be bound by the rule unless it is a rule of JUS COGENS.
In that case, the objections would amount to violations of international law.
The standard elements of customary international law must be proved by the party ascertain of
a particular rule of custom namely
i.
Uniformity of state practice
ii.
Generality of state practice
iii.
The sense that state practice is mandated or compelled by law which may thus be
reduced to two primary components namely
a) The objective practice of state
b) The subjective belief motivating that practice
Customary International law is therefore created by the fusion of an objective element that is
state practice and a subjective element that is Opinion Juris.
The party claiming the existence of a rule of customary international law has the burden of
proving it. (See the Lotus Case and The North Sea Continental Shelf Case).
This is done by various evidentiary procedures such as views and resolutions of the UN General
Assembly, practice of states, conventions and decisions of International Tribunals in
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3. GENERAL PRINCIPLES OF LAW
The statute of the ICJ authorizes the court to apply general principles of law recognized by
“civilized nations.”
The reference here is to the level of development of legal systems rather than economic or
political status because all nations are now considered as civilized.
Indeed the term “peace loving’ as stated in Article 4 of the UN Charter is now preferable. (Fred
Savage)
Article 4 of the UN Charter
1. Membership in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the Organization, are able and
willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a decision of
The General Assembly upon the recommendation of the Security Council.
The general principles are not a subsidiary body of doctrine to which resort may be heard when
all else fails because the articles does not speak of them as such, although it does so when it
uses judicial decisions as a means for the determination of rules of law.
The general principles are those which are accepted by all nations in their domestic law systems
such as certain principles of procedure which are principles of good faith and the principle of res
judicata.
In other words general principles include procedural and evidentiary principles as well as
principles of substance law provided that these do possess some character of generality over
and above the context of each legal system to which they belong in common.
Oppenheim states that the intention is to authorize the court to apply general principle so
municipal jurisprudence in particular of private law in so far as they are applicable to inter-state
relations.
In this way private law being in general more developed than International law has provided a
reserve store of legal principles upon which international law can draw.
according to which international law consists solely of rules of which states have given their
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The inclusion of this provision has therefore been seen as a rejection of the positivists doctrine
consent and as an affirmation of the naturalist doctrine where by if there appeared to a be a gap
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in the rules of international law the recourse could be heard to the general principles of law i.e.
natural law.
Schwarzenberger states that for the principles to qualify for the incorporation of international
law it must fulfill three requirements namely
1. It must be a general principle of law as distinct from a legal rule of a more limited
functional scopes.
2. It must be recognized by civilized/peace loving as distinct from barbaric or savage
communities.
3. It must be shared by a fair number of nations including the principal legal systems of the
world.
Although general principles have been validly recognized as a source of International law they
have been scarcely applied because the jurisdiction of ICJ is founded on consent and the court is
very cautious of this part so much so that even if it is empowered to decide ex aequo et bono it
rarely does so.
The ICJ does not have compulsory jurisdiction it has to accept voluntarily. The ICJ cannot decide
without the consent of the state. They can also with draw from the case.
International Tribunals have made references to general principles in a number of cases
See the following two cases
CASE 4
Chorzow Factory Indemnity (Merit) Case [Germany vs Poland] 1928 Rep Series A No 17
The Permanent Court of International Justice stated that “The Court observes it is a principle of
international law and even a general concept of law that any breach of an engagement involves an
obligation to make reparations”
It went further ..”the essential principle contained in the actual notion of an illegal act…is that
reparation must as far as possible wipe out all the consequences of the illegal act and re-establish the
situation which would in all probability have existed if that act had not been committed…”
“…one party cannot avail himself of the fact that the other has not fulfilled some obligation or has not
have been open to him”
On March 5th 1915 a contract was concluded between the Chancellor of the German Empire, on behalf
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latter from fulfilling the obligation in question or from having recourse to the tribunal which would
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had recourse to some means of redress if the former Party has by some illegal act, prevented the
PUBLIC INTERNATIONAL LAW-GPR 301
of the Reich and the Bayerische according to which that Company undertook “to establish for the Reich
and forthwith to begin the construction of amongst other things, a nitrate factory at Chorzow in Upper
Silesia. The necessary lands were to be acquired on behalf of the Reich and entered in its name in the
land register.
The machinery and equipment were to be in accordance with patents and licenses of the Company and
the experience gained by it and the Company undertook to manage the factory until March 31st
1941,making use of all patents,licences gained ,innovations and improvements as also of all supply and
delivery contracts which it had the benefit .For this purpose a special section of the Company was to be
formed which was to a certain extent ,to be subject to the supervision of the Reich which had the right
to share of the profits resulting from the working of the factory during the financial year.The Reich had
the right ,commencing on March 31st 1926 to terminate the contract for the management of the factory
by the Company on March 31st of any year upon giving fifteen months’ notice.
The contract could be determined as early as march 31st 1921 always on condition of 15 months notice
being given if the Reich’s share of the surplus did not reach a fixed level.
On July 3rd 1922 M.Ignacy Moscicki who was delegated with full powers to take charge of the factory at
Chorzow by a Polish ministerial decree of June 24th 1922 took possession of the factory and took over
the management in accordance with the terms of decree.The German Government contended and the
Polish Government did not deny that the said delegate ,in undertaking the control of the working of the
factory at the same time took possession of the movable property,patents,licences etc.
After having taken over the factory the polish Government entered it in the list of property transferred
to it under Article 256 of the Treaty of Versailles which list was duly communicated to the Reparation
Commission.The Polish Government alleges that after the pronouncement of Judment No.7 BY THE
Court ,The German Government asked that the factory should be struck out of the list in question,the
former Government has not however been informed whether this has been done.
In the meantime the Oberschlesische on November 15th 1922 had brought an action before the GermanPolish Mixed Arbitral Tribunal at Paris claiming amongst other things that the Polish Government should
be ordered to restore the factory.This action notice of which was served upon the respondent
Government on January 17th 1923 was withdrawn by the Oberschlesische in June 1928 before the
Tribunal had been able to give a decision.
Polish Mixed Arbitral Tribunal against the Polish Treasury with a view to obtaining an annual indemnity
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until the restitution of the factory to the Oberschlesische and to causing the possession and
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As regards the Bayerische,that Company also on March 25th 1925 brought an action before the German-
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management of the factory to be restored to it.Notice of this action was served on the respondent
Government on December 16th 1925;but the case was withdrawn in June 1928 at the same time as the
action brought by the Oberschlesische and in the same circumstances.
The Courts judgment No 7 was given on 25th May 1926.This judgement was a source of development
tending two different directions
1. On one hand at the initiative of the German Government it formed a starting point for direct
negotiations between the two Governments concerned in regard to those negotiations it is only
necessary here to note that on January 14th 1927 the German Government had recognized that
the factory could no longer be restored in kind and that consequently the reparation due must
in principle take the form of the payment of compensation ,a statement which is moreover
formally repeated in the case.
2. The negotiations were unsuccessful owing amongst other things to the fact that in the opinion
of the Polish Government certain claims which Poland was said to have against Germany,must
be set off against the indemnity to be awarded to Germany .The failure of the negotiations
resulted in the institution of the present proceeding.
The court was being asked
a) To declare that the Polish Government by reason of its attitude in respect of the
Oberschlesische and Bayerische Companies which attitude the Court had declared not to be in
conformity with the Geneva Convention is under an obligation to make good the consequent
damage sustained by those companies.
b) To award compensation the amount of which is indicated in the application for the damage
caused to each of the respective Companies.
c) To fix the method of payment and amongst other things to order the payments to be made by
the Polish Government to be effected to the account of the two Companies with the Deutsche
Bank in Berlin.
It follows from the foregoing that the application is designed to obtain in favour of Germany reparation
the amount of shich is determined by the damage suffered by the Oberschlesische and Bayerische .
Three fundamental questions arises
the indemnity
3) The extent of the damge.
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2) The existence of the damage which must serve as a basis for the calculation of the amount of
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1) The existence of the obligation to make reparation
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CASE 5
Corfu Channel Case Merit (1949)
The ICJ referred to circumstantial evidence to hold Albania responsible to the damage of a British
Warship holding “these indirect evidence is admitted to all systems of law and its use is recognized by
international decisions”
The UK brought the case claiming compensation for damage caused by mines to the Saumarez and the
Volage during their passage through the Corfu Channel on October 22 1946.
In the second part of the Special Agreement the following question is submitted to the court
2. Has the UK under International law violated the sovereignty of the Albanian People’s Republic
by reason of the acts of the Royal Navy in Albanian waters on the 22nd October and on the 12th
and 13th November 1946 and is there any duty to give satisfaction?
On May 15th 1946 the British cruisers Orion and Superb while passing southwards through the North
Corfu Channel were fired at by an Albanian battery in the vicinity of Saranda
The UK Government at once protested to the Albanian Government stating that innocent passage
through straits is a right recognized by International law.There ensued a diplomatic correspondence in
which the Albanian Government asserted that foreign warships and merchant vessels had no right to
pass through Albanian territorial waters without prior notification to and the permission of ,the Albanian
authorities
It was in such circumstances that two cruisers together with the destroyers Saumarez and Volage were
sent through the North Corfu Staright on October 22 1946.
The court considered the Albanian contention that the UK violated Albanian territorial sovereignty by
sending the warships through the strait without the previous authorization of the Albanian Government.
It was the opinion of the Court generally recognized and in accordance with international customs that
states in time of peace have right to send their warships through straits used for interntiaonal navigation
between two parts of the high seas without previous authorization of a coastal State,provided that the
passage is innocent.Unless otherwise prescribed in an international agreement /convention there is no
right for a Coastal State to prohibit such passage through Straits in time of peace.
sense but it denies that this Channel belongs to the class of interntional highways through which a right
36
of passage exists on the grounds that it is only of secondary importance and not even a necessary route
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The Albanian Government does not dispute that the North Corfu Channel is a strait in geographical
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between two parts of the high seas and that it is used almost exclusively for local traffic to and from the
ports of Corfu and Saranda.
In October 1944 the North Corfu Channel was swept by the British Navy and no mines were found in the
channel thus swept, whereupon the existence of a safe route through the Channel was announced in
November 1944.In January and February 1945 the Channel was check-swept by the British Navy with
negative results. That the British Admiralty must have considered the Channel to be safe route for
navigation is shown by the fact that on May 15th 1946 it sent two British Cruisers and on October 22nd a
squadron through the Channel without any special measures of precaution against danger from moored
mines. It was in this swept channel that the minefield was discovered on November 13th 1946.
It is further proved by evidence produced by the UK Government that the mining of Saumarez and
Volage occurred in Albanian territorial waters just at the place in the swept channel where the minefiled
was found as indicated on the chart forming annex 9 to the UK Memorial.This is confirmed by the Courts
experts who consider it to be free from any doubt that the two ships were mined in approximately the
position indicated on the chart.
The court consequently found that the following facts are established.The two ships were mined in
Albanian territorial waters in a previously swept and check-swept channel just at the place where a
newly laid minefiled consisting of moored contact German GY mines was discovered three weeks
later.The damage sustained by the ship was inconsistent with the damage which could have been
caused by floating mines,magnetic ground mines,magnetic moored mines or German GR mines,but its
nature and extent were such as would be causes by the mines of the type found in the minefiled in such
circumstances the Court arrives at the conclusion that the explosion were due to mines belonging to
that minefiled.
4. JUDICIAL DECISIONS
After enumerating three sources of the general rules above, Article 38 authorizes the court to
apply judicial decisions and the teachings of the most highly qualified publicists as subsidiary
means for the determination of rules of law.
Article 59 of the statute provides that the ICJs decisions have no binding force except between
This article was not intended merely to repress the principle Res Judicata but also to rule out a
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system of binding precedent.
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the parties and in respect of that particular case.
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The object of the article is to prevent particular legal principles accepted by the court in a
particular case from being binding on other states or in other disputes.
The reason for that is because the court has no compulsory jurisdiction and States must formally
accept the jurisdiction of ICJ.
There is therefore no binding authority of precedent of international law and international
court and tribunal decisions do not make law.
Although in theory there is the barrier to the adoption of the doctrine of precedent, in practice
the decisions of the ICJ are treated as having the highest authority.
State parties to cases that come before the court frequently make reference decisions of various
international tribunals.
Even in practice the court itself has of necessity followed previous decisions in the interest of
judicial consistency and has distinguished its previous decisions from the case actually being
heard.
For instance, in the Reparations for Injuries Suffered In the Service of the UN case 1949 ICJ
report pg 174 the International court of justice in its advisory opinion to the UN gen assembly
relied on the previous pronouncement on the Permanent Court of International Justice to the
International Labor Organization in 1926.
CASE 6
Reparations for Injuries Suffered In the Service of the UN case 1949 ICJ report pg 174
On 17th September 1978\48 Count Bernadotte was killed allegedly by a private gang or terrorist in the
new city of Jerusalem. That part of the city was named Israeli control. Count was carrying out his duties
as UN mediator in Palestine. In deciding upon the action to be taken in respect of the death, the UN Gen
Assembly asked the court for an advisory opinion on two questions. Namely
1. In the event of an official of the UN in the performance of his duties suffering injuries in
circumstances involving the responsibility of a state, has the UN as an organization have the
capacity to bring an international claim against the responsible de jure or de facto government
with a view in obtaining the reparation due in respect of damage caused to the UN or victim or
2. In the event of an affirmative reply how action by the UN to be reconciled with such rights is as
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may be possessed by the state of which victim is a national.
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to person entitled through him?
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In advising, the UN has the international legal personality with powers to claim reparation for damage
suffered, the ICJ relied on the advice of the permanent court of International Justice to the effect that
the International Labor Organization as a specialized agency of the UN was an International legal
personality.
See also the following two cases
CASE 7
Interpretation Of Peace Treatise Case 1950 ICJ Report pg 65 (Hungary vs. Bulgaria)
This case involved the interpretation of the 1947 peace treaties of the allied powers of Hungary and
Bulgaria.
The three 1947 Peace Treaties between the Allied Powers on the one hand and Bulgaria, Hungary and
Romania on the other hand provided for commissions to hear disputes concerning the “interpretation or
execution of the treaty” where they could not be resolved by negotiation. The commissions were to
consist of three members’ .The two parties to the dispute were to appoint a member each the parties
were then to agree upon a third. If they could not agree the third member was to be appointed by the
Secretary General of the UN.Disputes arose over the human rights guarantees in the treaties which
could not ,the UK and the US claimed ,be settled by negotiations.Bulgaria,Hungary and Romania refused
to appoint members to the commission.
The General Assembly asked the Court whether the Secretary-General could appoint the third member
and if so whether a commission consisting of the third member and the appointee of the other party
could hear a dispute. The Court answered the first question in the negative so that the second question
did not arise. In the course of its opinion the Court made the following comments on treaty
interpretation….
….The Government of Bulgaria, Hungary and Romania are under an obligation to appoint their
representatives to the Treaty Commissions and it is clear that refusal to fulfill a treaty obligation involves
international responsibility. Nevertheless such refusal cannot alter the conditions contemplated in the
present in this case and their absence is not made good by the fact that it is due to the breach of a
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treaty obligation. The failure of machinery for settling disputes by reason of the practical impossibility of
39
Treaties for the exercise by the Secretary General of his power of appointment. These conditions are not
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creating the Commission provided for in the Treaties is one thing, international responsibility is another.
The breach of a treaty obligation cannot be remedied by creating a Commission which is not the kind of
Commission contemplated by the Treaties. It is the duty of the Court to interpret the Treaties not to
revise them.
The principle of interpretation expressed in the maxim Ut res magis valeat quam pereat often referred
to as the rule of effectiveness cannot justify the Court in attributing to the provisions for the settlement
of disputes in the Peace Treaties a meaning which as stated above would be contrary to their letter and
spirit….
By Eleven votes to two the court opinion was that if one party fails to appoint a representative to a
Treaty Commission under the Peace Treaties with Bulgaria, Hungary and Romania where that party is
obligated to appoint a representative to the Treaty Commission, the Secretary General of the UN is not
authorized to appoint the third member of the commission upon the request of the other party to a
dispute.
CASE 8
Anglo Norwegian Fisheries Case (1951) ICJ Rep 116
Since 1911 British trawlers had been seized and condemned for violating measures taken by the
Norwegian government specifying the limits within which fishing was prohibited to foreigners. In 1935, a
decree was adopted establishing the lines of delimitation of the Norwegian fisheries zone.
On 24th September 1949 the government of the United Kingdom filed the registry of the international
court of justice an application instituting proceedings against Norway. The subject of the proceeding was
the validity, under international law, of the lines of delimitation of the Norwegian fisheries zone as set
forth in a Decree of 12th July 1935.
The application referred to the declaration by which the united Kingdom and Norway had accepted the
compulsory jurisdiction of the International Court of Justice in accordance with article 36 (2) of its
statute.
The parties involved in this case were Norway and the United Kingdom, of Great Britain and Northern
the United Kingdom. The decree covers the drawing of straight lines, called “baselines” 4 miles deep into
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the sea. This 4 miles area is reserved fishing exclusive for Norwegian nationals. Under article 36(2) both
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Ireland. The implementation of the Royal Norwegian Decree of the 1935 was met with resistance from
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UK and Norway were willing to accept the jurisdiction of the ICJ on this case and with no appeal. The
issues that constitute the case were submitted to the court and the arguments presented by both
countries. The issues claims the court to: declare the principles of international law applicable in
defining the baselines by reference to which Norwegian government was entitled to delimit a fisheries
zone and exclusively reserved to its nationals; and to define the said “base lines” in the light of the
arguments of the parties in order to avoid further legal difference; and secondly to award damages to
the government of the United Kingdom in respect of all interferences by the Norwegian authorities with
British fishing vessels outside the fisheries zone, which in accordance with ICJ's decision, the Norwegian
government may be entitled to reserve for its nationals.
The United Kingdom argued that;
•
Norway could only draw straight lines across bays
•
The length of lines drawn on the formations of the Skaergaard fjord must not exceed 10 nautical
miles( the 10 Mile rule)
•
That certain lines did not follow the general direction of the coast or did not follow it sufficiently
, or they did not respect certain connection of sea and land separating them
•
That the Norwegian system of delimitation was unknown to the British and lack the notoriety to
provide the basis of historic title enforcement upon opposable to by the United Kingdom
The Kingdom of Norway argued;
•
That the base lines had to be drawn in such a way as to respect the general direction of the
coast and in a reasonable manner.
The case was submitted to the International Court of Justice by the government of the United Kingdom.
The government of United Kingdom wants the ICJ to declare the validity of the base lines under
international law and receive compensation for damages caused by Norwegian authorities as to the
seizures of British Fishing vessels.
international law. The first principle put forward by the UK is that the baselines must be low water mark,
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government of the UK, then the Norwegian system, and finally the conformity of that system with
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The judgment of the court first examines the applicability of the principles put forward by the
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this indeed is the criterion generally adopted my most states and but differ as to its application.
(Johnson 154). The court considered the methods of drawing the lines but, the court rejected the “trace
Parallele” which consists of drawing the outer limits of the belt following the coast and all its sinuosity.
The court also rejected the “courbe tangent” (arcs of a circle) and it is not obligatory under international
law to use these methods of drawing the lines. The court also paid particular attention to the
geographical aspect of the case. The geographical realities and historic control of the Norwegian coast
inevitably contributed to the final decision by the ICJ. The coast of Norway is too indented and is an
exception under international law from the 3 miles territorial waters rule. The fjords, Sunds along the
coastline which have the characteristic of a bay or legal straits should be considered Norwegian for
historical reasons that the territorial sea should be measured from the line of low water mark. So it was
agreed on the outset of both parties and the court that Norway had the right to claim a 4 mile belt of
territorial sea. The court concluded that it was the outer line of the Skaergaard that must be taken into
account in admitting the belt of the Norwegian territorial waters. (Johnson 154- 158). “There is one
consideration not to be overlooked, the scope of which extends beyond geographical factors. That of
certain economic interests peculiar to a region, the reality and importance of which are clearly
evidenced by a long usage” (Johnson 160)
The law relied upon mainly international Law of the sea; how far a state can modify its territorial waters
and its control over it, exclusively reserving fishing for its nationals. In this case, rules that are practiced
for instance how long a baseline should be. Only a 10 mile long straight line is allowed and this has been
the practice by most states however it is different in the case of Norway because of Norway's
geographic indentation, islands and islets.
The international customary law has been a law of reference in the court arguments. Judge Read from
Canada asserts that Customary international law does not recognize the rule according to which belts of
territorial waters of coastal states is to be measured. More so public international law has been relied
upon in this case. It regulates relation between states; the United Kingdom and Norway.
Coastline Rule
held that the method employed in the delimitation of the fisheries zone by the Royal Norwegian decree
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of the 12th July 1935 is not contrary to international law. By 8 votes to 4 votes the court also held that
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The judgment was rendered in favor of Norway on the 18th December 1951. By 10 votes to 2 the court
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the base lines fixed by this decree in application are not contrary to international law. However there
are separate opinions and dissenting opinions from the judges in the court.
Judge Hackworth declared that he concurred with the operative part of the judgment because he
considered that the Norwegian government had proved the existence of historic title of the disputed
areas of water.
Judge Alvarez from Chile relied on the evolving principles of the law of nations applicable to the law of
the sea.
•
States have the right to modify the extent of the of their territorial sea
•
Any state directly concerned may object to another state's decision as to the extent of its
territorial sea
•
International status of bays and straits must be determined by the coastal state directly
concerned with due regard to the general interest and
•
Historic rights and concept of prescription in international law.
Judge Hsu Mo from china opinions diverge from the court's with regards to conformity with principles of
international law to the straight lines drawn by the Decree of 1935. He allowed possibility in certain
circumstances, for instance, belt measured at low tide, Norway's geographic and historic conditions. But
drawing the straight lines as of the 1935 degree is a moving away from the practice of the general rule.
(Johnson 171)
The dissenting opinions from judge McNair rested upon few rules of law of international waters. Though
there are exceptions, in case of bays, the normal procedure to calculate territorial waters in from the
land, a line which follows the coastline. Judge McNair rejected the argument upon which Norway based
its decree including:
•
Protecting Norway's economic and other social interests
•
The UK should not be precluded from objecting the Norwegian system embodied in the Decree
An historic title allowing the state to acquire waters that would otherwise have the status of
deep sea. Judge McNair concluded that the 1935 decree is not compatible with international
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•
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because previous acquiescence in the system and
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law.(Johnson173)
Furthermore, Judge Read from Canada was unable to concur with parts of the judgment. Read rejected
justification by Norway for enlarging her maritime domain and seizing and condemning foreign ships
(Johnson 173);
•
Sovereignty of the coastal state is not the basis for Norway to claim 4 mile belt from straight
base lines
•
Customary international law does not recognize the rule according to which belts of territorial
waters of coastal states is to be measured.
•
Norwegian system cannot be compatible with international law.
5. WRITERS AND PUBLICISTS
Although writings of publicists only constitute evidence of customary law, learned writings can
also play a subsidiary role in developing new rules of law.
For instance the contributions of writers such as Hugo Grotius and Gentili were very important
to the formulation and development of international law.
Besides, writers of International repute such as Oppenheim or Professor Ian Brownlie are often
relied upon by legal advisors to states, arbitral tribunals and courts.
However, much as the writings or teachings of the publicists might have been useful in the early
development of International Law today their utility is limited because much of contemporary
International Law is now conventional (treaty law).
Besides, the writings have two main limitations namely
i.
Writers reflect certain national prejudices to the rules of International law. The views of
an American writer on rules of laws may be radically different from those of a Chinese of
a 3rd world writer.
ii.
Such juristic views may be the writers views of what the law ought to be (law de lege
There is therefore a danger of using proposals for a particular author for existing rules of
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International law
44
Ferenda) rather than what the law is (law de lege lata).
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6. OTHER SOURCES OF INTERNATIONAL LAW
Are there any other sources of International Law?
Article 20 (4)
Article 20 (5)
Article 103
Does the UN make laws which are binding?
The powers of the UN
As earlier indicated the sources of law enumerated in Article 38(1) of the statute of the ICJ are
often regarded as comprising the sum of the traditional sources of International law.
Increasingly however this approach is subject to limitation because International tribunals and
courts do in the light of changes taking place in the international society look to additional
sources to give them guidance on the law.
These sources can in the circumstances be looked upon as additional sources of International
Law.
These are known as Soft law. For Instance
I.
Resolutions, Recommendations and Declarations of the UN Gen Assembly are often
resorted to not only their persuasive value on international duties and obligations but
also as evidence of political consensus on various International relations disputes. The
resolutions may also have very significant influence on the development of International
Law and practice. For instance, in the Nicaragua v USA (merits) Case
CASE 9
Nicaragua vs USA (merits) Case
The majority of the court considered that Gen Assembly resolution 26, 25 (XXV) (session of the Gen
Ass) The Declaration on Principals of International Law Concerning Friendly Relations and Cooperation
among states was illustrative of customary law.
he ordered the overthrow of Nicaraguan President José Santos Zelaya. During August and September
45
1912, a contingent of 2300 U.S. Marines landed at the port of Corinto and occupied León and the
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The first armed intervention by the United States in Nicaragua occurred under President Taft. In 1909,
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railway line to Granada. A pro-U.S. government was formed under the occupation. The 1914 BryanChamorro Treaty granted perpetual canal rights to the U.S. in Nicaragua and was signed ten days before
the U.S.-operated Panama Canal opened for use, thus preventing anyone from building a competing
canal in Nicaragua without U.S. permission.
In 1927, under Augusto César Sandino, a major peasant uprising was launched against both the U.S.
occupation and the Nicaraguan establishment. In 1933, the Marines withdrew and left the National
Guard in charge of internal security and elections. In 1934, Anastasio Somoza García, the head of the
National Guard, ordered his forces to capture and murder Sandino. In 1937, Somoza assumed the
presidency, while still in control of the National Guard, and established a dictatorship that his family
controlled until 1979.
The downfall of the regime is attributed to its embezzlement of millions of dollars in foreign aid that was
given to the country in response to the devastating 1972 earthquake. Many moderate supporters of the
dictatorship began abandoning it in the face of growing revolutionary sentiment. The Sandinista (FLSN)
movement organized relief, began to expand its influence and assumed the leadership of the revolution.
A popular uprising brought the FSLN to power in 1979. The United States had long been opposed to the
socialist FSLN, and after the revolution the Carter administration moved quickly to support the
Somocistas with financial and material aid. When Ronald Reagan took office, he augmented the direct
support to an anti-Sandinista group, called the Contras, which included factions loyal to the former
dictatorship. When Congress prohibited further funding to the Contras, Reagan continued the funding
through arms sales that were also prohibited by Congress.
Nicaragua
Nicaragua charged:
a) That the United States, in recruiting, training, arming, equipping, financing, supplying and
otherwise encouraging, supporting, aiding, and directing military and paramilitary actions in and
Article 2 (4) of the United Nations Charter;
Articles 18 and 20 of the Charter of the Organization of American States;
Article 8 of the Convention on Rights and Duties of States;
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against Nicaragua, had violated its treaty obligations to Nicaragua under:
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Article I, Third, of the Convention concerning the Duties and Rights of States in the Event
of Civil Strife.
b) That the United States had breached international law by
i.
violating the sovereignty of Nicaragua by:
armed attacks against Nicaragua by air, land and sea;
incursions into Nicaraguan territorial waters;
aerial trespass into Nicaraguan airspace;
efforts by direct and indirect means to coerce and intimidate the Government of
Nicaragua.
ii.
using force and the threat of force against Nicaragua.
iii.
intervening in the internal affairs of Nicaragua.
iv.
infringing upon the freedom of the high seas and interrupting peaceful maritime
commerce.
v.
killing, wounding and kidnapping citizens of Nicaragua.
Nicaragua demanded that all such actions cease and that the United States had an obligation to pay
reparations to the government for damage to their people, property, and economy.
United States
The U.S. argued that its actions were "primarily for the benefit of El Salvador, and to help it to respond
to an alleged armed attack by Nicaragua, that the United States claims to be exercising a right of
collective self-defense, which it regards as a justification of its own conduct towards Nicaragua. El
Salvador joined the U.S. in their Declaration of Intervention which it submitted on 15 August 1984,
where it alleged itself the victim of an armed attack by Nicaragua, and that it had asked the United
States to exercise for its benefit the right of collective self-defence."[1]
The CIA claimed that the purpose of the Psychological Operations in Guerrilla Warfare manual was to
"moderate" the existing Contra activities.[9]
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Nations Jeane Kirkpatrick dismissing the Court as a "semi-legal, semi-juridical, semi-political body, which
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The United States argued that the Court did not have jurisdiction, with U.S. ambassador to the United
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nations sometimes accept and sometimes don't." [9]
It is noteworthy that the United States, the defaulting party, was the only Member that put forward
arguments against the validity of the judgment of the Court, arguing that it passed a decision that it 'had
neither the jurisdiction nor the competence to render'. Members that sided with the United States in
opposing Nicaragua's claims did not challenge the Court's jurisdiction, nor its findings, nor the
substantive merits of the case.[10]
Judgment
The very long judgment first listed 291 points. Among them that the United States had been involved in
the "unlawful use of force." The alleged violations included attacks on Nicaraguan facilities and naval
vessels, the mining of Nicaraguan ports, the invasion of Nicaraguan air space, and the training, arming,
equipping, financing and supplying of forces (the "Contras") and seeking to overthrow Nicaragua's
Sandinista government. This was followed by the statements that the judges voted on.[11]
Findings
The court found evidence of an arms flow between Nicaragua and insurgents in El Salvador between
1979-81. However, there was not enough evidence to show that the Nicaraguan government was
imputable for this or that the US response was proportional. The court also found that certain
transborder incursions into the territory of Guatemala and Costa Rica, in 1982, 1983 and 1984, were
imputable to the Government of Nicaragua. However, neither Guatemala nor Costa Rica had made any
request for US intervention; El Salvador did in 1984, well after the US had intervened unilaterally.[2]
"As regards El Salvador, the Court considers that in customary international law the provision of arms to
the opposition in another State does not constitute an armed attack on that State. As regards Honduras
and Costa Rica, the Court states that, in the absence of sufficient information as to the transborder
incursions into the territory of those two States from Nicaragua, it is difficult to decide whether they
amount, singly or collectively, to an armed attack by Nicaragua. The Court finds that neither these
Regarding human rights violations by the Contras, "The Court has to determine whether the relationship
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collective self-defence."[12]
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incursions nor the alleged supply of arms may be relied on as justifying the exercise of the right of
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of the contras to the United States Government was such that it would be right to equate the Contras,
for legal purposes, with an organ of the United States Government, or as acting on behalf of that
Government. The Court considers that the evidence available to it is insufficient to demonstrate the
total dependence of the contras on United States aid. A partial dependency, the exact extent of which
the Court cannot establish, may be inferred from the fact that the leaders were selected by the United
States, and from other factors such as the organisation, training and equipping of the force, planning of
operations, the choosing of targets and the operational support provided. There is no clear evidence
that the United States actually exercised such a degree of control as to justify treating the contras as
acting on its behalf... Having reached the above conclusion, the Court takes the view that the Contras
remain responsible for their acts, in particular the alleged violations by them of humanitarian law. For
the United States to be legally responsible, it would have to be proved that that State had effective
control of the operations in the course of which the alleged violations were committed."[12]
The Court concluded that the United States, despite its objections, was subject to the Court's
jurisdiction. The Court had ruled on 26 November by 11 votes to one that it had jurisdiction in the case
on the basis of either Article 36 (i.e. compulsory jurisdiction) or the 1956 Treaty of Friendship,
Commerce and Navigation between the United States and Nicaragua. The Charter provides that, in case
of doubt, it is for the Court itself to decide whether it has jurisdiction, and that each member of the
United Nations undertakes to comply with the decision of the Court. The Court also ruled by unanimity
that the present case was admissible.[10] The United States then announced that it had "decided not to
participate in further proceedings in this case." About a year after the Court's jurisdictional decision, the
United States took the further, radical step of withdrawing its consent to the Court's compulsory
jurisdiction, ending its previous 40 year legal commitment to binding international adjudication. The
Declaration of acceptance of the general compulsory jurisdiction of the International Court of Justice
terminated after a 6-month notice of termination delivered by the Secretary of State to the United
Nations on October 7, 1985. [13]
Although the Court called on the United States to "cease and to refrain" from the unlawful use of force
against Nicaragua and stated that the US was "in breach of its obligation under customary international
enforcement mechanism attempted by Nicaragua.[14] On November 3, 1986 the United Nations General
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to comply. [3] As a permanent member of the Security Council, the U.S. has been able to block any
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law not to use force against another state" and ordered it to pay reparations, the United States refused
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Assembly passed, by a vote of 94-3 (El Salvador, Israel and the US voted against), a non-binding
resolution urging the US to comply.
The ruling
On June 27, 1986, the Court made the following ruling:
The Court
1. Decides that in adjudicating the dispute brought before it by the Application filed by the
Republic of Nicaragua on 9 April 1984, the Court is required to apply the "multilateral treaty
reservation"contained in proviso (c) to the declaration of acceptance of jurisdiction made under
Article 36, paragraph 2, of the Statute of the Court by the Government of the United States of
America deposited on 26 August 1946;
2. Rejects the justification of collective self-defence maintained by the United States of America in
connection with the military and paramilitary activities in and against Nicaragua the subject of
this case;
3. Decides that the United States of America, by training, arming, equipping, financing and
supplying the contra forces or otherwise encouraging, supporting and aiding military and
paramilitary activities in and against Nicaragua, has acted, against the Republic of Nicaragua, in
breach of its obligation under customary international law not to intervene in the affairs of
another State;
4. Decides that the United States of America, by certain attacks on Nicaraguan territory in 19831984, namely attacks on Puerto Sandino on 13 September and 14 October 1983, an attack on
Corinto on 10 October 1983; an attack on Potosi Naval Base on 4/5 January 1984, an attack on
San Juan del Sur on 7 March 1984; attacks on patrol boats at Puerto Sandino on 28 and 30
March 1984; and an attack on San Juan del Norte on 9 April 1984; and further by those acts of
intervention referred to in subparagraph (3) hereof which involve the use of force, has acted,
against the Republic of Nicaragua, in breach of its obligation under customary international law
not to use force against another State;
territory, and by the acts imputable to the United States referred to in subparagraph (4) hereof,
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has acted, against the Republic of Nicaragua, in breach of its obligation under customary
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5. Decides that the United States of America, by directing or authorizing over Rights of Nicaraguan
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international law not to violate the sovereignty of another State;
6. Decides that, by laying mines in the internal or territorial waters of the Republic of Nicaragua
during the first months of 1984, the United States of America has acted, against the Republic of
Nicaragua, in breach of its obligations under customary international law not to use force
against another State, not to intervene in its affairs, not to violate its sovereignty and not to
interrupt peaceful maritime commerce;
7. Decides that, by the acts referred to in subparagraph (6) hereof the United States of America
has acted, against the Republic of Nicaragua, in breach of its obligations under Article XIX of the
Treaty of Friendship, Commerce and Navigation between the United States of America and the
Republic of Nicaragua signed at Managua on 21 January 1956;
8. Decides that the United States of America, by failing to make known the existence and location
of the mines laid by it, referred to in subparagraph (6) hereof, has acted in breach of its
obligations under customary international law in this respect;
9. Finds that the United States of America, by producing in 1983 a manual entitled 'Operaciones
sicológicas en guerra de guerrillas', and disseminating it to contra forces, has encouraged the
commission by them of acts contrary to general principles of humanitarian law; but does not
find a basis for concluding that any such acts which may have been committed are imputable to
the United States of America as acts of the United States of America;
10. Decides that the United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May
1985, has committed acts calculated to deprive of its object and purpose the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
11. Decides that the United States of America, by the attacks on Nicaraguan territory referred to in
subparagraph (4) hereof, and by declaring a general embargo on trade with Nicaragua on 1 May
1985, has acted in breach of its obligations under Article XIX of the Treaty of Friendship,
Commerce and Navigation between the Parties signed at Managua on 21 January 1956;
12. Decides that the United States of America is under a duty immediately to cease and to refrain
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of obligations under
customary international law enumerated above;
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13. Decides that the United States of America is under an obligation to make reparation to the
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from all such acts as may constitute breaches of the foregoing legal obligations;
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14. Decides that the United States of America is under an obligation to make reparation to the
Republic of Nicaragua for all injury caused to Nicaragua by the breaches of the Treaty of
Friendship, Commerce and Navigation between the Parties signed at Managua on 21 January
1956;
15. Decides that the form and amount of such reparation, failing agreement between the Parties,
will be settled by the Court, and reserves for this purpose the subsequent procedure in the case;
16. Recalls to both Parties their obligation to seek a solution to their disputes by peaceful means in
accordance with international law.
Legal clarification and importance
The ruling did in many ways clarify issues surrounding prohibition of the use of force and the right of
self-defence. Arming and training the Contra was found to be in breach with principles of nonintervention and prohibition of use of force, as was laying mines in Nicaraguan territorial waters.
Nicaragua's dealings with the armed opposition in El Salvador, although it might be considered a breach
with the principle of non-intervention and the prohibition of use of force, did not constitute "an armed
attack", which is the wording in article 51 justifying the right of self-defence.
The Court considered also the United States claim to be acting in collective self-defence of El Salvador
and found the conditions for this not reached as El Salvador never requested the assistance of the
United States on the grounds of self-defence.
In regards to laying mines, "...the laying of mines in the waters of another State without any warning or
notification is not only an unlawful act but also a breach of the principles of humanitarian law underlying
the Hague Convention No. VIII of 1907."
Similarly in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996
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ICJ pg 90)
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CASE 10
Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (1996 ICJ pg 90)
The ICJ held that UN Gen Assembly resolutions can in certain circumstances provide evidence
important for establishing the existence of a rule or the emergence of an opinion juris. In this case
the Gen Assembly had asked the court for an advisory opinion on the question: “is the threat or
use of Nuclear weapons in any circumstances permitted under International law?”The court after
a review of the relevant International legal instrument as well as the security council Gen
Assembly resolution of the matters reached a resolution that the threat or use of nuclear weapons
will generally be contrary to the rules of IL applicable to armed conflicts and in particular the
principles and rules of humanitarian law.
An advisory opinion on this issue was originally requested by the World Health Organization (WHO)
on 3 September 1993: In view of the health and environmental effects, would the use of nuclear
weapons by a state in war or other armed conflict be a breach of its obligations under international
law including the WHO Constitution?
The ICJ considered the WHO's request, in a case known as the Legality of the Use by a State of
Nuclear Weapons in Armed Conflict (General List No. 93), and also known as the WHO Nuclear
Weapons case, between 1993 and 1996. The ICJ fixed 10 June 1994 as the time limit for written
submissions, but after receiving many written and oral submissions, later extended this date to 20
September 1994. After considering the case the Court refused to give an advisory opinion on the
WHO question. On 8 July 1996 it held, by 11 votes to three, that the question did not fall within the
scope of WHO's activities, as is required by Article 96(2) of the UN Charter.
On 15 December 1994 the UN General Assembly adopted resolution A/RES/49/75K. This asked the
ICJ urgently to render its advisory opinion on the following question: Is the threat or use of nuclear
weapons in any circumstances permitted under international law?
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Deterrence and "threat"
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Court's analysis of illegality of nuclear weapons
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The court considered the matter of deterrence, which involves a threat to use nuclear weapons
under certain circumstances on a potential enemy or an enemy. Was such a threat illegal? The court
decided, with some judges dissenting, that, if a threatened retaliatory strike was consistent with
military necessity and proportionality, it would not necessarily be illegal. (Judgement paragraphs 37–
50)
The legality of the possession of nuclear weapons
The court then considered the legality of the possession, as opposed to actual use, of nuclear
weapons.The Court looked at various treaties, including the UN Charter, and found no treaty
language that specifically forbade the possession of nuclear weapons in a categorical way.
The UN Charter was examined in paragraphs 37-50 (paragraph 37: "The Court will now address the
question of the legality or illegality of recourse to nuclear weapons in the light of the provisions of
the Charter relating to the threat or use of force"). Paragraph 39 mentions: "These provisions [i.e.
those of the Charter] do not refer to specific weapons. They apply to any use of force, regardless of
the weapons employed. The Charter neither expressly prohibits, nor permits, the use of any specific
weapon, including nuclear weapons. A weapon that is already unlawful per se, whether by treaty or
custom, does not become lawful by reason of its being used for a legitimate purpose under the
Charter."
Treaties were examined in paragraphs 53-63 (paragraph 53: "The Court must therefore now examine
whether there is any prohibition of recourse to nuclear weapons as such; it will first ascertain
whether there is a conventional prescription to this effect"), as part of the law applicable in
situations of armed conflict (paragraph 51, first sentence: "Having dealt with the Charter provisions
relating to the threat or use of force, the Court will now turn to the law applicable in situations of
armed conflict"). In particular, with respect to "the argument [that] has been advanced that nuclear
weapons should be treated in the same way as poisoned weapons", the Court concluded that "it
does not seem to the Court that the use of nuclear weapons can be regarded as specifically
56)". It was also argued by some that the Hague Conventions concerning the use of bacteriological
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Regulations annexed to the Hague Convention IV of 1907 or the 1925 Protocol" (paragraphs 54 and
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prohibited on the basis of the [...] provisions of the Second Hague Declaration of 1899, the
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or chemical weapons would also apply to nuclear weapons, but the Court was unable to adopt this
argument ("The Court does not find any specific prohibition of recourse to nuclear weapons in
treaties expressly prohibiting the use of certain weapons of mass destruction", paragraph 57 in fine).
With respect to treaties that "deal [...] exclusively with acquisition, manufacture, possession,
deployment and testing of nuclear weapons, without specifically addressing their threat or use," the
Court notes that those treaties "certainly point to an increasing concern in the international
community with these weapons; the Court concludes from this that these treaties could therefore
be seen as foreshadowing a future general prohibition of the use of such weapons, but they do not
constitute such a prohibition by themselves" (paragraph 62). Also, regarding regional treaties
prohibiting resource, namely those of Tlatelolco (Latin America) and Rarotonga (South Pacific) the
Court notes that while those "testify to a growing awareness of the need to liberate the community
of States and the international public from the dangers resulting from the existence of nuclear
weapons", "[i]t [i.e. the Court] does not, however, view these elements as amounting to a
comprehensive and universal conventional prohibition on the use, or the threat of use, of those
weapons as such." (paragraph 63).
Customary international law also provided insufficient evidence that the possession of nuclear
weapons had come to be universally regarded as illegal.
Ultimately, the court was unable to find an opinio juris (that is, legal consensus) that nuclear
weapons are illegal to possess. (paragraph 65) However, in practice, nuclear weapons have not been
used in war since 1945 and there have been numerous UN resolutions condemning their use
(however, such resolutions are not universally supported—most notably, the nuclear powers object
to them).(paragraph 68-73) The ICJ did not find that these facts demonstrated a new and clear
customary law absolutely forbidding nuclear weapons.
However, there are many universal humanitarian laws applying to war. For instance, it is illegal for a
combatant specifically to target civilians and certain types of weapons that cause indiscriminate
damage are categorically outlawed.All states seem to observe these rules, making them a part of
nuclear weapons.(paragraph 86) The Court decided not to pronounce on the matter of whether the
55
use of nuclear weapons might possibly be legal, if exercised as a last resort in extreme circumstances
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customary international law, so the court ruled that these laws would also apply to the use of
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(such as if the very existence of the state was in jeopardy).(paragraph 97)
Decision
The court undertook seven separate votes, all of which were passed:
1. The court decided to comply with the request for an advisory opinion;
2. The court replied that "There is in neither customary nor conventional international law any
specific authorization of the threat or use of nuclear weapons";
3. The court replied that "There is in neither customary nor conventional international law any
comprehensive and universal prohibition of the threat or use of nuclear weapons as such";
4. The court replied that "A threat or use of force by means of nuclear weapons that is contrary
to Article 2, paragraph 4, of the United Nations Charter and that fails to meet all the
requirements of Article 51, is unlawful";
5. The court replied that "A threat or use of nuclear weapons should also be compatible with
the requirements of the international law applicable in armed conflict, particularly those of
the principles and rules of humanitarian law, as well as with specific obligations under
treaties and other undertakings which expressly deal with nuclear weapons"
6. The court replied that "the threat or use of nuclear weapons would generally be contrary to
the rules of international law applicable in armed conflict, and in particular the principles
and rules of humanitarian law; However, in view of the current state of international law,
and of the elements of fact at its disposal, the Court cannot conclude definitively whether
the threat or use of nuclear weapons would be lawful or unlawful in an extreme
circumstance of self-defence, in which the very survival of a State would be at stake"
7. The court replied that "There exists an obligation to pursue in good faith and bring to a
conclusion negotiations leading to nuclear disarmament in all its aspects under strict and
effective international control".
II.
Decisions of the UN Security Council taken in exercise of the powers conferred upon it
Peace and Aggression) are binding on states. This is based on the functions and powers
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of the council as provided for under Article 24 and Article 25 of the Charter read
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by the UN Charter (Chapter 7-Actions with respect to Threats to Peace, Breaches of the
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together with Article 103 which provides that in the event of the conflict between the
obligations of the members of the UN under the charter and their obligations under any
other international agreement, their obligations under the charter shall prevail.
Article 24 of the UN Charter
Functions and Powers
1. In order to ensure prompt and effective action by the United Nations, its Members confer on the
Security Council primary responsibility for the maintenance of international peace and security, and
agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
2. In discharging these duties the Security Council shall act in accordance with the Purposes and
Principles of the United Nations. The specific powers granted to the Security Council for the discharge of
these duties are laid down in Chapters VI, VII, VIII, and XII.
3. The Security Council shall submit annual and, when necessary, special reports to the General
Assembly for its consideration.
Article 25 of the UN Charter
The Members of the United Nations agree to accept and carry out the decisions of the Security Council
in accordance with the present Charter.
Article 103 of the UN Charter
In the event of a conflict between the obligations of the Members of the United Nations under the
present Charter and their obligations under any other international agreement, their obligations under
the present Charter shall prevail.
III.
Unilateral Declarations of States may give rise to binding international legal obligations.
In such instances the intentions of the state making the declaration in question to be
bound is crucial as will be the element of publicity or notoriety. E.g. state officials
including the president, minister of foreign affairs or the prime minister make
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element of the good faith on the part of the state making declaration. For instance
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declarations then they are binding to Kenya as a country. Equally crucial will be the
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CASE 11
The Legal Status of Eastern Green Land (Norway v Denmark) (1933) PCIJ rep Ser A/B No 53.
The Government of Norway having by proclamation declared part of Eastern Greenland to be under
Norwegian sovereignty, the Government of Denmark sought a decision that this proceeding was invalid,
the whole of Greenland being already under Danish sovereignty, as Norway had herself recognized,
notably in an oral statement by the Minister of Foreign Affairs, Nils Claus Ihlen, to the Danish Minister
on 22 July 1919 to the effect ‘that the Norwegian Government would not make any difficulties in the
settlement of th[e] question’ of the extension of Danish political and economic interests over all
Greenland.
The Court, which assumed jurisdiction under the Optional Clause declarations by the parties, held (12 to
2) that it was ‘beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on
behalf of his Government in response to a request by the diplomatic representative of a foreign Power,
in regard to a question falling within his province, is binding upon the country to which the Minister
belongs’, and in consequence that Norway was ‘under an obligation to refrain from contesting Danish
sovereignty over Greenland as a whole and, a fortiori to refrain from occupying a part of Greenland’: at
71 and 73.
The Court also stressed the relative nature of the test of establishing title to territory by means of
occupation, noting that ‘in many cases the tribunal [deciding the question of territorial sovereignty] has
been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the
other State could not make out a superior claim. This is particularly true in the case of claims to
sovereignty over areas in thinly populated or unsettled countries’: at 46. .
CASE 12
Nuclear Tests Cases (Australia and New Zealand v France)
The minister for defense goes to parliament and tells the French that they have reached a stage of
atmospheric test. The President of France tell the UN General Assembly that France had reached
finality of the test.
Pacific. France (D) completed a series of nuclear tests in the South Pacific. Australia and New Zealand (P)
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applied to the !.C.). demanding that France (D) cease testing immediately. While the case was pending,
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Australia and New Zealand (P) demanded that France (D) cease atmospheric nuclear tests in the South
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France (D) announced the series of tests was complete and that it did not plan any further such tests.
France (D) moved to dismiss the applications.
Issue:
May declarations made by way of unilateral acts have the effect of creating legal obligations?
Rule:
declerations made by way of unilateral acts may have the effect of creating legal obligations.
Analysis:
The unilateral statements made by French authorities were first communicated to the government of
Australia. To have legal effect there was no need tor the statements to be directed to any particular
state. The general nature and characteristics of the statements alone were relevant for evaluation of
their legal implications.
Outcome:
Yes. Declarations made by way of unilateral acts may have the effect of creating legal obligations. The
sole relevant question is whether the language employed in any given declaration reveals a clear
intention. One of the basic principles governing the creation and performance of legal obligations is the
principle of good faith. The statements made by the President of the French Republic must be held to
constitute an engagement of the State in regard to the circumstances and intention with which they
were made. The statements made by the French authorities are therefore relevant and legally binding.
Applications dismissed.
Shifta Wars Case (Kenya vs Somalia)
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Siad Bare ending the Shifta war on Somalia by Kenya in 1981.
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Further Readings (Articles )
T.O Elias “The Nature of the Subjective Element in Customary International Law 44 ICLQ 501 (1995)
A.P Rubin “The International Effects of Unilateral Declarations” 71 AJIL 1 (1977)
PRACTICE QUESTION 2
“The problem of sources of international law is of great theoretical and practical importance as it has
to answer the question how norms of international law”. 19 Indian Journal of International Law
Do the provisions of Article 18 (1) of the Statute of the International Court of Justice provide adequate
answers to the question referred to by Professor Turkin in the above excerpt?
( See Article 18 (1) of the Statute of the ICJ
Article 18 of the Statute of the ICJ
1. No member of the Court can be dismissed unless, in the unanimous opinion of the other members,
he has ceased to fulfil the required conditions.
2. Formal notification thereof shall be made to the Secretary-General by the Registrar.
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3. This notification makes the place vacant
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LECTURE 5 AND 6: 8TH AND 15TH FEBURUARY 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 4: INTERNATIONAL LAW AND MUNICIPAL LAW
International Law generally governs relations between states interse (among themselves) or
with other international legal persons. It is generally concerned with the international
community and its legal order.
Municipal Law on the other hand is a reflection of state sovereignty and governs the
relationship between individuals among themselves and individuals and state organs.
Prima facie it would therefore appear that the two are distinct parallels.
In practice however it is common to find the two systems of the law governing one and the
same subject. For instance in the case of expropriation of foreign owned assets international
law provides a standard of expropriation just like municipal law does and it is common to find
municipal law conflicting with international law subject. E.g. Gaddafi’s expropriation of
international assets in Libya without just compensation.
Besides, as international law expands in scope to embrace new areas such as Human rights and
Humanitarian issues, environment and refugees, there is a corresponding reduction in the areas
of law that is a preserve of municipal law. (Presence of international conventions in the field of
human rights e.g. 1966 international covenant of social economics, convention on international
diversity /ozone layer)
As a consequence there is a relationship between the two legal systems. The relationship
between International law and municipal law takes two main approaches which are:
1. The Jurisprudential Theoretical Question as to whether International law and municipal
law are two distinct systems of law or they are a part of a universal legal order
2. The Practical Situation where there exist conflict between the rules of international law
and the rules of municipal law before an international tribunal or before a municipal
court.
At the jurisprudential level, the relation between IL and municipal law has been cast in terms of
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the Dualist and Monist debate.
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JURISPRUDENTIAL APPROACH
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a) DUALIST DOCTRINE
Under the dualist doctrine International law and municipal law are two independent and
separate legal systems.
The dualist doctrine is based on the view that international law is a law applicable between
sovereign states and that municipal law applies within a state to regulate the activities of its
citizens.
On this basis neither legal systems has the power to create or alter the rules of the other.
When municipal law provides that international law applies in whole or in part within its
jurisdiction, this is merely an exercise of the authority of municipal law of an adoption or
transformation of the rules of international law.
In the case of a conflict between international law and municipal law, a Municipal court would
apply municipal law and any conflict at the international level would fall to be resolved by
international law because it is not only supreme in that field but it is in effect the only system
there is.
The chief exponents of this doctrine are Triepel and Anzilotti (judge of the permanent court of
IJ).
According to Triepel while the subjects of municipal law are individuals the subjects of
international law are solely and exclusively states. Accordingly while municipal law binds
individuals, international law binds states.
Besides while the source of municipal law is the will of the state itself the source of international
law is the common will of states.
On his part, Anzilotti distinguished international law and municipal law according to the
fundamental principles by which each system is conditioned.
Meaning while municipal law is conditioned by the fundamental principle or grand norm which
is to be obeyed; international law is conditioned by the principle of Pacta Sunt Servanda that is
to say treaties between states are to be observed in good faith.
Consequently, the two legal systems are so distinct that conflict between them is impossible.
b) MONIST DOCTRINE
According to the monist doctrine, international law and municipal law are both part of the same
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The followers of this doctrine such as Hans Kelsen and Sir Hersch Lauterpacht consider a
supreme universal law a more trustworthy repository a civilize value than the municipal law of
the nation state.
According to them it does not matter whether it is the individual or state that is bound because
in the final analysis the state is but a group of individuals looked at as a an entity.
According to the monists therefore any construction other than monism is bound to amount to
a denial of the true legal character of international law. In their view there cannot be any escape
from the positions that the two systems because they are both systems of legal rules are
interrelated part of one legal structure.
QUESTION OF SUPREMACY
When it comes to the issues of supremacy the exponents of the Dualist Doctrine hold that when
there is a conflict between municipal law and international law in a municipal tribunal,
municipal law will prevail.
According to them primacy is ascribed to municipal law on the basis of the sovereignty of the
states will.
The monists are divided and are not clear in the issue of supremacy. There are those who
attribute supremacy to international law and those who attribute supremacy to municipal law
For instance, Hans Kelsen makes a structural analysis of both international law and municipal
law by applying his doctrine of the grundnorm and comes to the conclusion that both systems
are supreme depending on the view taken.
However, Kelsens view has been criticized particularly on the basis that if international law were
not the supreme order then primacy would be attributed to over one hundred separate systems
of municipal law. This would lead to International anarchy.
Besides, the thesis of ultimate primacy of municipal law breaks down in two cases:
1. If international law drew its validity from a state constitution then it would cease to be
in force once the constitution on which its authority rested, disappeared. Suppose there
constitutions or revolutions because IL does not lose its force despite constitutional
changes.
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is a coup de tat where would international law be placed. The certainty however is that
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2. International law binds new states entering into the International society without their
consent and such consent if expressed at all is merely declaratory of the true legal
position e.g. Southern Sudan. Besides, there is a duty on every state to bring not only its
laws but also its constitution into harmony with international law. State sovereignty is
not absolute. It only represents no more than competence that states enjoy within the
limits of international law.
DOES THE SUPREMACY OF INTERNATIONAL LAW THEREFORE RESTS IN THE LAW AS A WHOLE OR
PARTICULAR PRINCIPLES
STARKE is of the view that supremacy rests only in particular rules and principles.
He uses the analogy of federal constitutions and concludes that just like federal units enjoy
areas of autonomy not bound by the federal constitution so do the states. States enjoy some
areas of autonomy not regulated by international law.
There are two theories that underline the application of international law within the municipal
sphere
1. The dualists have put forward the theory that rules of international law cannot ex
proprio vigore (directly and automatically) be applied within the municipal sphere of
state courts. They must first undergo a process of specific adoption by or specific
incorporation into municipal law. Since, according to the positivists (dualist) theory, IL
and municipal law constitute two strictly separate and structurally different systems.
International law cannot impinge upon municipal law unless the municipal law allows its
constitutional machinery to be used for that purpose. IL does not apply directly. In the
case of treaty rules the theory is that there must be a transformation of the treaty into
municipal law for instance by legislation approving or implementing
the treaty
provisions which alone validates the extension to individuals of the rules laid down in
the treaties.This is an executive duty or authority. The executive ratifies and has to be
transformed into law by the legislature so that it can be binding upon us.(Executive can
be Head of State, Head of Government and Minister of Foreign Affairs)
sought to challenge their common premise that there exists a common field in which
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the two legal orders both simultaneously have their spheres of activity. In his lecture at
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2. To avoid a dogmatic dispute between the dualist and the monists Sir Gerald Fitzmaurice
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the Hague Academy of International Law, in 1957 Sir Gerald considered that, “the
entire monist – dualist controversy is unreal, artificial and strictly beside the point,
because it assumes something that has to exist for there to be any controversy at all –
and which in fact does not exist – namely, a common field in which the two legal orders
under discussion both simultaneously have the spheres of the activity.” What has come
to be referred to as The Theory of Coordination, Sir Gerald argued that the two systems
do not come into conflict as systems since they operate as different spheres each being
supreme in its own field.
Formally therefore, international law and municipal law as systems can never come into conflict.
However, there may occur a conflict of obligations or an inability on the part of the state on the
domestic plane to act in a manner required by international law.
In such cases, if nothing can be or is done to deal with the matter, it does not invalidate the local
law but the state will on the International plane have committed a breach of its international
law obligation for which it will be internationally responsible. E.g. where Japan refused to
contribute its soldiers forwards the war between Iraq and Kuwait stating that its Constitution
said soldiers could only be used for protection of sovereignty of Japan. Held that as a member of
UN is had agreed to that Japan refused and offered 13 billion instead.
STATE PRACTICE (PRACTICAL APPROACH) –HOW DOES IT MANIFEST OF THE THREE THEORIES
On a practical level the controversy whether the monist or dualist or indeed Sir Gerald theory of
coordination applies is unnecessary.
Indeed, International tribunals’ juries and states show a preference for practice over theory.
Where there is a conflict between rules of international law and municipal law before an
international tribunal it is settled law that international law is supreme. A state cannot plead the
provisions of its own law or deficiencies there in, in answer to a claim against it for an alleged
breach of its international law obligations.
This is shown by The Alabama Claims Arbitration of 1872.
CASE 13
During the American Civil war a number of ships were build in England for private buyers. The vessels
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were unarmed when they left England but it was generally known that they would be fitted out as
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The Alabama Claims Arbitration of 1872.
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worships for use by the Confederate Forces. Despite repeated protests by the US these vessels were
allowed to leave English Ports and after being equipped with armament preyed successfully upon
American High Seas Commerce.
During and after the war, US charged that GB had violated her duties as a neutral and sought to obtain
compensation for the damage done.E.g. (A war between TZ and UG and Kenya declares neutrality.
Kenya cannot aid in importing arms through their port to TZ. Kenya would have breached its obligations)
Under the Treaty of Washington of May 8th 1871, it was agreed to submit the controversy to
arbitration. Article VI, of the Treaty contained the following three rules agreed upon by the parties as
applicable to the case and governing the arbitrators: “a neutral government is bound –
1. First to use due diligence to prevent the fitting out, arming, or equipping, within its
jurisdiction, of any vessel which it has reasonable ground to believe it is intended to
cruise or to carry on war against a power with which it is at peace; and also to use like
diligence to prevent the departure from its jurisdiction of any vessel intended to cruise
or carry on war as above, such vessel having been specially adapted, in whole or in part,
within such jurisdiction to war like use;
2. Secondly, not to commit or suffer either belligerent to make use of its port or waters as
the base of naval corporations against the other, or for the purpose of the new or
augmentation of military supplies or arms or the recruitment of men;
3. Thirdly , to exercise due diligence of its own port and waters, and as to all persons
within its jurisdiction, to prevent any violation of the foregoing obligations and duties.”
Great Britain argued inter alia that under its law as it then stood it had not been possible to prevent the
sailing of vessels constructed under private contracts.
The arbitrators found however, that Great Britain had failed by commission to fulfill the duties
prescribed by the Treaty of Washington in upholding the supremacy of international law and rejecting
itself for a failure in due diligence on the plea of insufficiency of the legal means of actions which it
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possessed.---It is plain that to satisfy the exigency of due diligence, and to escape liability, a neutral
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the British argument the arbitrators said; “---the government of Her Britannic Majesty cannot justify
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government must take care that its municipal law shall prohibit acts from contravening neutrality.”
See also the following two cases
CASE 14
Treatment of Polish Nationals in Danzig 1932 PCIJ
The Court declared that 'a State cannot adduce as against another State its own constitution with a
view to evading obligations incumbent upon it under international law or treaties in force'.''
Art. 103 of the Treaty of Versailles of 28 June 1919 (225 C.T.S. 188) provided for a constitution for the
Free City of Danzig to be drawn up and placed under a guarantee of the League of Nations. Art. 104
provided for the conclusion of a treaty between Poland and Danzig with, by virtue of para. 5, the object,
inter alia, of prohibiting discrimination within Danzig to the detriment of Polish citizens or other persons
of Polish origin or speech; the Convention of Paris was accordingly concluded on 9November 1920 (6
L.N.T.S. 189), art. 33 of which gave effect to the prohibition of discrimination.
A High Commissioner for Danzig was appointed by the Council of the League of Nations. In 1930, Poland
sought from the High Commissioner a decision regarding unfavourable treatment of Polish nationals in
Danzig. The matter was referred to the Council of the League of Nations which, on 22 May 1931,
requested the P.C.I.J. for an advisory opinion on whether the treatment of Polish nationals in Danzig was
to be decided solely by reference to the relevant treaties or also by reference to the Constitution of
Danzig, and accordingly whether Poland was entitled to submit to organs of the League (i.e. the High
Commissioner) disputes concerning the application to Polish nationals of the Danzig Constitution and
Danzig laws; the request also sought the opinion of the P.C.I.J. on the interpretation of art. 104(5) of the
Treaty of Versailles, art. 33(1) of the Convention of Paris and, if appropriate, the relevant provisions of
the Danzig Constitution.
decided solely by reference to art. 104(5) of the Treaty of Versailles and art. 33(1) of the Convention of
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Paris (and also if necessary, by reference to other treaties or rules of ordinary international law), but not
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On 4February 1932, the Court (10 to 4) advised that the treatment of Polish nationals in Danzig must be
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by reference to the Constitution of Danzig, and that consequently Poland could not submit to organs of
the League disputes concerning the application to Polish nationals of the Danzig Constitution and other
Danzig laws, unless such disputes concerned the violation of Danzig's international obligations towards
Poland arising either from treaty provisions in force between them or from ordinary international law.
In the course of this part of its opinion the Court said: ‘It should however be observed that, while on the
one hand, according to generally accepted principles, a State cannot rely, as against another State, on
the provisions of the latter's Constitution, but only on international law and international obligations
duly accepted, on the other hand and conversely, a State cannot adduce as against another State its
own Constitution with a view to evading obligations incumbent upon it under international law or
treaties in force’: at 24.
The Court went on to give its opinion on the extent of the prohibition of discrimination against Polish
nationals on the basis of the interpretation of art. 104(5) of the Treaty of Versailles and art. 33(1) of the
Convention of Paris. In this connection, the Court said ‘that the prohibition against discrimination, in
order to be effective, must ensure the absence of discrimination in fact as well as in law. A measure
which in terms is of general application, but in fact is directed against Polish nationals and other persons
of Polish origin or speech, constitutes a violation of the prohibition…. Whether a measure is or is not in
fact directed against these persons is a question to be decided on the merits of each particular case’: at
28.
CASE 15
Advisory Opinion of ICJ –UN Headquarters Agreement Case 1988 ICJ Report page 3
The Court delivered a unanimous Advisory Opinion on the question concerning the Applicability of the
Obligation to Arbitrate under Section 21 of the United Nations Headquarters Agreement of 26 June
1947. It delivered this Advisory Opinion, after the application of an accelerated procedure, in response
to a request submitted by the General Assembly of the United Nations under resolution 42/229 B,
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In its decision, the Court gave its opinion that the United States of America is under an obligation, in
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adopted on 2 March 1988.
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accordance with section 21 of the United Nations Headquarters Agreement, to enter into arbitration
The General Assembly's request had arisen from the situation which had developed following the
signing of the Anti-Terrorism Act adopted by the United States Congress in December 1987, a law which
was specifically aimed at the Palestine Liberation Organization and inter alia declared illegal the
establishment or maintenance of an office of the Organization within the jurisdiction of the United
States. The law thus concerned in particular the office of the PLO Observer Mission to the United
Nations, established in New York after the General Assembly had conferred observer status on the PLO
in 1974. The maintenance of the office was held by the Secretary-General of the United Nations to fall
within the ambit of the Headquarters Agreement concluded with the United States on 26 June 1947.
Alluding to reports submitted by the Secretary-General of contacts and conversations he had pursued
with the United States Administration with a view to preventing the closure of the PLO office, the
General Assembly put the following question to the Court:
" In the light of facts reflected in the reports of the Secretary-General, is the United States of America, as
a party to the Agreement between the United Nations and the United States of America regarding the
Headquarters of the United Nations, under an obligation to enter into arbitration in accordance with
section 21 of the Agreement?"
The question upon which the Court's advisory opinion had been sought was contained in resolution
421229 B of the United Nations General Assembly, adopted on 2 March 1988. This resolution read in full
as follows:
"The General Assembly,
"Recalling its resolution 42/210 B of 17 December 1987 and bearing in mind its resolution 42/229 A
above,
"Having considered the reports of the Secretary-General of 10 and 25 February 1988 [A/42/915 and
the host country concerning the interpretation or application of the Agreement between the United
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"Affirming the position of the Secretary-General that a dispute exists between the United Nations and
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Add. l ],
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Nations and the United States of America regarding the Headquarters of the United Nations, dated
26 June 1947 [see resolution 169 (II)], and noting his conclusions that attempts at amicable settlement
were deadlocked and that he had invoked the arbitration procedure provided for in section 21 of the
Agreement by nominating an arbitrator and requesting the host country to nominate its own arbitrator,
"Bearing in mind the constraints of time that require the immediate implementation of the dispute
settlement procedure in accordance with section 21 of the Agreement,
"Noting from the report of the Secretary-General of 10 February 1988 [A/42/915] that the United States
of America was not in a position and was not willing to enter formally into the dispute settlement
procedure under section 21 of the Headquarters Agreement and that the United States was still
evaluating the situation,
"Taking into account the provisions of the Statute of the International Court of Justice, in particular
Articles 41 and 68 thereof,
"Decides, in accordance with Article 96 of the Charter of the United Nations, to request the International
Court of Justice, in pursuance of Article 65 of the Statute of the Court, for an advisory opinion on the
following question, taking into account the time constraint:
"'In the light of facts reflected in the reports of the Secretary-General [A/42/915 and Add. l], is the
United States of America, as a party to the Agreement between the United Nations and the United
States of America regarding the Headquarters of the United Nations [see resolution 169 (II)], under an
obligation to enter into arbitration in accordance with section 21 of the Agreement?'"
The events in question centred round the Permanent Observer Mission of the Palestine Liberation
Organization (PLO) to the United Nations in New York. The PLO had on 22 November 1974 been invited,
by General Assembly resolution 3237 (XXIX), to "participate in the sessions and the work of the General
Assembly in the capacity of observer". It had consequently established an observer mission in 1974 and
maintained an office in New York City outside the United Nations Headquarters District.
"to make unlawful the establishment and maintenance within the United States of an office of the
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Palestine Liberation Organization"; section 3 of that Bill provided inter alia that it would be unlawful
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In May 1987 a Bill had been introduced into the Senate of the United States, the purpose of which was
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after its effective date:
"notwithstanding any provision of the law to the contrary, to establish or maintain an office,
headquarters, premises or other facilities or establishments within the jurisdiction of the United States
at the behest or direction of, or with funds provided by, the Palestine Liberation Organization . . ."
The text of that Bill became an amendment, presented in the Senate in the autumn of 1987, to the
"Foreign Relations Authorization Act, Fiscal Years 1988 and 1989". From the terms of that amendment it
appeared that the United States Government would, if the Bill became law, seek to close the office of
the PLO Observer Mission. On 13 October 1987 the Secretary-General accordingly emphasized, in a
letter to the United States Permanent Representative to the United Nations, that the legislation
contemplated ran counter to obligations arising from the Headquarters Agreement, and the following
day the PLO Observer brought the matter to the attention of the United Nations Committee on
Relations with the Host Country. On 22 October a spokesman for the Secretary-General issued a
statement to the effect that sections 11-13 of the Headquarters Agreement placed a treaty obligation
on the United States to permit the personnel of the Mission to enter and remain in the United States in
order to carry out their official functions.
Similarly, Article 27 of the Vienna Convention on the Law of Treaties 1969 provides: A party
may not invoke the provisions of its internal law as justification for its failure to perform a
treaty.
The principle of primacy of international law over municipal law before international tribunals
applies to all aspects of a state municipal law i.e. to its constitutional provisions, its ordinary
legislation, and the decisions of its court.
N/B The conflict between a states municipal law and its International obligations does not
necessarily affect the validity of that law in the municipal sphere.
Accordingly a municipal act contrary to international law may be internally recognized as valid
but other states will be under no duty to recognize its external effects.e.g The fact that countries
seek arbitration in international spheres does not mean that the International tribunal has
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struck down the country’s municipal law.
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PRACTICE QUESTION
Just because the municipal law is in contravention with the international law, it does not invalidate
the municipal law. Discuss
The principle of the supremacy of international does not have a good ground in the municipal
law system.
International law is not concerned with the instruments that states use to implement the
international engagement. Its concern is that states effect their engagements in the manner
most suited to them.
The matter in most cases is normally determined by the constitutional law of the state
concerned. For instance the constitutions of many states provide for the adoption of rules of
international law by incorporating or transforming them into their municipal law systems.
Different countries have adopted different ways to deal with the issues emanating from the
conflict of municipal and international law. For example
THE UNITED STATES OF AMERICA (US) POSITION
In the US for instance, rules of customary international law are administered as part of the law
of the land and Acts of congress are construed so as not to conflict therewith although a later
clear statute will prevail over earlier rules of customary International law.
In so far as Treaties are concerned Article VI (2) of the US Constitution stipulates that, “all
treaties made or which shall be made under the authority of the US shall be heart of the law
of the land”.
Besides, a distinction between self executing and non self executing Treaties, the former are
those which do not in the view of American court expressly or by nature require legislation to
make them operative within the municipal field and that is to be determined by regard to the
intention of the signatory parties and the surrounding circumstances.
If the treaty is within the terms of the constitution and it is self executing then under the
constitution it is deemed to be operative as part of the law of the US and will prevail also over a
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rule of Customary International Law.
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Self executing treaties ratified by US are binding on American court even if in conflict with
previous American statutes provided there is no conflict with the constitution.
See for example SALT I and II (Strategic Arms Limitation Treaty)
STRATEGIC ARMS LIMITATION TREATY I (SALT I)
The SALT negotiations were the first negotiations between the two superpowers, which made an
effort to limit strategic nuclear weapons with the stated goal of reducing the level of armaments to
curb the nuclear arms race in the Cold War. As such, the tasks before the negotiators were vast. The
negotiations covered the entire triad of strategic nuclear weapons: intercontinental ballistic missiles
(ICBMs), submarine-launched ballistic missiles (SLBMs), and strategic bombers. Although presented
as a major breakthrough in arms control, the treaty did not reduce any armaments; in fact, it only
froze the number of nuclear weapons at the levels existing at the time on both sides. One of the
main drawbacks of the treaty was that it did not address the most destabilizing issue at the time—
the MIRV technology, leaving it outside the treaty limits.
Signed on May 26, 1972, during President Nixon’s visit to Moscow, SALT I (the Interim Agreement)
limited both sides to the existing number of ICBMs for the next five years (while subsequent
negotiations would set permanent limits for both sides). The Soviet Union was permitted to have
1,618 ICBMs and 950 SLBMs. The United States was permitted to have 1,054 ICBMs and 710 SLBMs.
However, since the treaty did not limit the MIRV technology, the United States was permitted to
maintain and strengthen its advantage in warheads over the Soviet Union: Strategic bombers were
also left outside of the treaty—an issue to be resolved in the next stage of negotiations.
In SALT I, U.S. negotiators accepted the Soviet condition for verification—“by national technical
means” only, which later became one of the most difficult issues in arms control negotiations. It
meant that the spy satellites would be the only means of verification, without any inspections of
compliance.
STRATEGIC ARMS LIMITATION TREATY I (SALT II)
SALT I ushered in the era of U.S.-Soviet arms control negotiations. SALT II negotiations began soon
after the signing of SALT I. The Interim Agreement was intended to expire in 1977. However, the
Soviet relations, and U.S. domestic political problems. After President Nixon resigned in 1974,
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Gerald Ford moved quickly on SALT II, picking up where Nixon and Brezhnev left it. In late November
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negotiations were more difficult than expected, which reflected the increasing tensions in U.S.-
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1974, Ford and Brezhnev met in the Soviet Far East, near the city of Vladivostok and negotiated the
basic framework of the treaty.
The Soviet Union made a significant concession in Vladivostok by agreeing to the overall ceiling of
2,400 strategic launchers (including ICBMs, SLBMs, and strategic bombers), of which 1,320 could be
equipped with MIRV technology, while not counting either forward-based systems or the nuclear
weapons of other members of NATO. In an unusual move, showing the great importance Brezhnev
assigned to reaching an agreement, the Soviet leader challenged his Minister of Defense, Andrei
Grechko, who protested against Brezhnev’s agreement not to count the forward-based systems and
British and French nuclear weapons. According to Deputy Foreign Minister Georgi Kornienko “had to
spill political blood” over Vladivostok.
The issues left unresolved at Vladivostok were the principle of counting the strategic bombers and
the air-launched cruise missile, which were seen as technical issues soon to be resolved. Both sides
expected to sign the treaty soon afterwards. Instead, the progress was significantly slowed down
first by Brezhnev’s stroke, and then by the negative U.S. domestic reaction to the signing of the
Helsinki Final Act, which confirmed the post-war borders in Europe and was seen as a concession to
the Soviet Union. By 1976, the presidential campaign, in which détente with the Soviet Union was
one of the central issues, made finalizing the treaty impossible.
On the other hand treaties which are not self executing but require legislation are not binding
upon American Courts until the necessary legislation is enacted.
Besides, if the relevant treaty purports to deal with a particular subject matter in respect of
which the congress has exclusive legislative powers the treaty will be considered as prima facie
non self executing irrespective of what the intention of the parties is claimed to be.
THE UNITED KINGDOM (UK) POSITION
The UK position is similar to the one of US as far as the rules of customary international law are
Under the doctrine of incorporation rules of customary international law are automatically part
of English law so long as they are not inconsistent with Acts of Parliament or authoritative
judicial decisions.
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It is in this sphere that the doctrine of incorporation has become the main British approach. It is
an old-established theory dating back to the eighteenth century, owing its prominence at that
stage to the considerable discussion then taking place as to the precise extent of diplomatic
immunity.
See Buvot vs. Barbuit [1737]
CASE 16
Buvot vs. Barbuit [1737]
Lord Talbot declared unambiguously that 'the law of nations in its full extent was part of the law of
England', so that a Prussian commercial agent could not be rendered liable for failing to perform a
decree.
This acceptance of customary international law rules as part and parcel of the common law of
England, so vigorously stated in a series of eighteenth-century cases, was subject to the priority
granted to Acts of Parliament and tempered by the principle of stare decisis or precedent,
maintained by the British courts and ensuring that the judgments of the higher courts are
binding upon the lower courts of the hierarchical system.
Accordingly, a rule of international law would not be implemented if it ran counter to a statute
or decision by a higher court.
In the nineteenth century, a series of cases occurred which led many writers to dispute the
validity of the hitherto accepted incorporation doctrine and replace it with the theory of
transformation, according to which the rules of customary international law only form part of
English law if they have been specifically adopted, either by legislation or case-law.
The turning point in this saga is marked by the case of R vs. Keyn
CASE 17
R vs. Keyn
This case concerned a German ship, the Franconia which collided with and sank a British vessel in the
English Channel within three miles of the English coast.
court did indeed have jurisdiction to try the offence in such circumstances.
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ship, and the question that came before the Court for Crown Cases Reserved was whether an English
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The German captain was indicted for manslaughter following the death of a passenger from the British
PUBLIC INTERNATIONAL LAW-GPR 301
The Court came to the conclusion that no British legislation existed which provided for jurisdiction over
the three-mile territorial sea around the coasts. It was true that such a rule might be said to exist in
international law, but it was one thing to say that the state had the right to legislate over a part of what
had previously been the high seas, and quite another to conclude that the state's laws operate at once
there, independently of any legislation.
One thing did not follow from another, and it was imperative to keep distinct on the one hand the
power of Parliament to make laws, and on the other the authority of the courts, without appropriate
legislation, to apply the criminal law where it could not have been applied before.
The question, as Lord Cockburn emphasized, was whether, acting judicially, the Court could treat the
power of Parliament to legislate as making up for the absence of actual legislation. The answer came in
the negative and the German captain was released.
Compare with West Rand Central Gold Mining Co vs. R
CASE 18
West Rand Central Gold Mining Co vs. R
The opinion put forward in this case showed a further blurring of the distinction between the
incorporation and transformation theories. Lord Alverstone declared that whatever had received the
common consent of civilized nations must also have received the assent of Great Britain and as such
would be applied by the municipal tribunals. However, he went on to modify the impact of this by
noting that any proposed rule of international law would have to be proved by satisfactory evidence
to have been 'recognised and acted upon by our own country' or else be of such a nature that it
could hardly be supposed any civilized state would repudiate it.
See also Mortensen vs. Peters
CASE 19
Mortensen vs. Peters
Moray Firth. His ship had been operating within the Moray Firth and was within the area covered by the
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relevant by-law, but it was beyond the three-mile limit recognized by international law.
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A Danish captain was convicted by a Scottish court for contravening a fishing by-law regarding the
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The issue came to the Scottish Court of Justiciary, where Lord Dunedin, in discussing the captain's
appeal, concentrated upon the correct construction to be made of the relevant legislation. He noted
that an Act of Parliament duly passed and assented to was supreme and the Court had no option but to
give effect to its provisions. In other words, statutes had predominance over customary law, and a
British court would have to heed the terms of an Act of Parliament even if it involved the breach of a
rule of international law. This is so even though there is a presumption in British law that the legislation
is to be so construed as to avoid a conflict with international law. Where such a conflict does occur, the
statute has priority and the state itself will have to deal with the problem of the breach of a customary
rule.
Once the scope of rules of international law has been determined by British Court’s of final
authority all British courts are there after bound by that determination. Accordingly a rule of
customary international law will be treated as incorporated into domestic law of the UK in so far
as it is not inconsistent with rules enacted by statute or finally declared by the Tribunals.
As far as Treaties are concerned the position is different this is because in the UK the conclusion
and ratification of treaties are within the prerogative of the Crown, i.e it is the prerogative of the
executive.
Parliament has no part to play in this process (Conclusion and Ratification).
Treaties are not regarded as a source of rights and obligation in the domestic law of the
UK.Because it would be open to the Crown (Monarch) to alter the domestic law of the UK by a
treaty instead by through enactment of legislation and thus to by pass the supremacy of the
parliament as the law making body.
The executive may conclude treaties which don’t involve changes in domestic law but those that
involve changes in the domestic law or payment of money require domestication by parliament.
The position was emphasized by Lord Templeman in one case involving the International Tin
Council.
International Tin Council Ltd vs. Department of Trade and Industry [1990] 2 AC 418
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Lord Templeman Stated “A Treaty is a contract between the governments of two or more sovereign
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CASE 20
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states. International law regulates the relations between sovereign states and determines the validity,
interpretation and enforcement of Treaties. A Treaty which Her Majesty Government is a party does
not alter the law in the UK.A Treaty may be incorporated into or alter the laws of UK except to the
extent that a Treaty becomes incorporated into the laws of UK by statute the court of UK have no
power to enforce Treaty rights and obligations at the behest of a sovereign government or private
individual”
The International Tin Council (ITC) was an international organization established by treaty in 1956 and
was constituted by 6th International Tin Agreements (ITA6) made between a number of states including
the UK.Under the ITA6 its function was to adjust world production and consumption of tin and to
prevent excessive fluctuation of tin. Although ITA6 was never made part of law in England ,the ITC had
its principal Headquarters in London pursuant to another agreement. The ITC was recognized under
English law by the International Tin Council (immunities and Privileges) order of 1972.
The case arose from a suit brought by certain banks to which the ITC owed money for the enforcement
of the judgment that they obtained in arbitration.The relevant issue before the court was whether it
could recognize and allow an untransformed treaty to be the basis for a claim in the English court .It was
held that “the crown’s power to conclude treaties with other sovereign states was an exercise of Royal
Prerogative..but the Royal Prerogative did not extend to altering domestic law or rights of individuals
without the intervention of parliament and a treaty was not part of the English law unless and until it
had been incorporated into it by legislation.
By a constitutional convention known as the Ponsonby Rule all treaties subject to ratification
are laid before parliament for 21 days on which it is sitting.
Although in theory this opens the way to debate it has not happened that for a treaty not
requiring any change in UK law parliament has not debated it (only if it changes UK law).
The foreign and commonwealth office since 1996 accompany the treaty text with an
Where the treaty requires changes of UK law and payment of money the government also
secures passage of the necessary changes whether by an Act of parliament or by subsidiary
legislation before the treaty is brought into force for the UK.
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explanatory memorandum which enables issues as significance to be identified.
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The government never deliberately assumes international commitment without giving internal
effect to them.(There must be an Act of parliament transforming it into municipal law).
There are however two exception to the above rule of direct applicability of Treaty law
1. Under the provisions of the 1957 Treaty of Rome which established the European
Communities now the European Union, Treaties adopted and laws enacted by the
European Commission prevail over the municipal law of the member states and bind
their courts. This is because European Union is neither foreign nor external to the legal
systems of member states. It forms an integral part of the national laws.
It has direct responsibility, direct effect and supremacy and establishes a member state
liability for damages for individuals caused by a breach of European Union law for which
that member state is responsible.
Decisions of the European Union Court of Justice have the final interpreter of European
Union law has to be applied by the national courts of the member states.
2. The 1950 European Convention on Human Rights applied directly to the UK and the
provisions thereof are to be applied by the UK courts.
However in 1958 the UK parliament the Human Right Act which domesticated the
provisions of the Conventions. Before then any cases involving human rights issues
could only be brought before European Commission and European Court on Human
Rights.
THE SOUTH AFRICA (SA) POSITION
Section 231 of the 1996 Constitution of South Africa provides that International Agreements
the Republic shall bind only after it has been approved by a resolution of the National Assembly
and National Council of Provinces.
International law becomes laws of the Republic when they are enacted into law in the domestic
Section 232 provides with respect to customary international law the same is law in the republic
unless it is inconsistent with constitution or Act of Parliament.
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of the republic unless they are inconsistent to the constitution or Acts of Parliament.
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scene but self-executing provisions agreements that have been approved by parliament are laws
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THE KENYAN POSITION
In Kenya although the Independence (1963) Constitution was salient on the matter the practice
was that in case of a conflict between International and municipal law in a domestic court, the
municipal law would be held to prevail. See Okunda and Another vs. Republic
CASE 21
Okunda and Another vs. Republic
Where the High Court of Kenya stated “if we did have to decide a question involving a conflict between
Kenya law on one hand and principles or usages of International law on the other---- and found it
impossible to reconcile the two ,we as a municipal court would be bound to say that Kenya law prevails.
If the Kenya law being considered is the Constitution of Kenya and we allow the Treaty to prevail we
would in effect allowing an amendment of the constitution otherwise than in a manner allowed or laid
down……that cannot be done either by us or any other tribunal
The Court of Appeal held that Treaties do not become part of Kenyan laws until they are made by law of
Kenya. It stated “ The provisions of a Treaty entered into by the Kenyan government don’t become part
of the municipal law of Kenya save in so far as they are made so by laws of Kenya”.
If the provisions of any Treaty having been made part of the municipal law of Kenya are in conflict with
the constitution then the extent of such conflict ,such provisions are void.
After the new constitution we have new provisions namely Article 2 (5) and Article 2 (6)
ARTICLE 2 OF THE Constitution of Kenya 2010
Supremacy of Constitution
2. (1) This Constitution is the supreme law of the Republic and binds all persons and all State organs at
(2) No person may claim or exercise State authority except as authorized under this Constitution.
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(3) The validity or legality of this Constitution is not subject to challenge by or before any court or other
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both levels of government.
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State organ.
(4) Any law, including customary law that is inconsistent with this Constitution is void to the extent of
the inconsistency, and any act or omission in contravention of this Constitution is invalid.
(5) The general rules of international law shall form part of the law of Kenya.
(6) Any treaty or convention ratified by Kenya shall form part of the law of Kenya under this
Constitution.
See also the provisions of Treaty Making and Ratification Act of 2012
THE PRINCIPLE OF RES JUDICATA IN THE RELATIONSHIP OF MUNICIPAL AND INTERNATIONAL LAW
There is no effect of Res Judicata from the decision of International Jurisdiction in so far as
international law is concerned because as much as the subject matter is the same the parties
and the issues will have a different aspect.
In municipal court the legal person claiming is an individual or corporation while in the
international court it would be a state exercising the right of diplomatic protection in respect to
its national.
Similarly a decision of an international court does not create a res judicata to the municipal
court.
In International courts the claimants are states and pleadings are done diplomatically (signed by
the president or foreign affairs officer.
The decision of ICJ does not invalidate the Acts of Parliament similarly a Supreme Court decision
binds all courts even if ICJ says that it violates international law.
ADDITIONAL READING ON RES JUDICATA
There is no effect of res judicata from the decision of a municipal court so far as an international
jurisdiction is concerned, since, although the subject matter may be substantially the same, the
parties will not be and the issue will have a different aspect.
In the municipal court the legal person claiming is an individual or corporation: before an
to its nationals.
Considerations of admissibility may have the effect of creating an exception to the general rule.
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international tribunal the claimant will be a state exercising diplomatic protection with respect
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Thus a respondent in an international claim may plead successfully that adequate remedies
have been obtained before another tribunal either national or internationally.
CASE
CYSNE (1930) RIAA
An arbitral tribunal held that in matters of prize the judgments of national prize courts of final
instance constituted international titles, which were generally recognized and so had the
force of res judicata as to the passing of property. The policy behind this ruling was based on
considerations of security for third persons acquiring title prize: However, the prize court’s
decision might create international responsibility for the state of the forum if it constituted a
violation of international law. And of course an international tribunal may be bound by its
constituent instrument, usually an agreement between two or more states to accept certain
categories of national decisions as conclusive of particular cases.
In principle decisions by organs of international organizations are not binding on national courts
without the co-operation of the internal legal systems, which may adopt a broad constitutional
provisions for automatic incorporation of treaty norms or require specific acts of incorporation
at least for certain categories of treaties.
It follows that a decision of the International Court though it concerns substantially the same
issues as those before a municipal court does not itself create a res judicata for the latter.
However it does not follow that a municipal court could not or should not recognize the validity
of the judgment of an international tribunal of manifest competence and authority at least for
certain purposes.
In a considerable number of countries municipal courts in dealing with cases of war crimes and
issues arising from belligerent occupation e.g the validity of acts of administration of requisition
and of transactions conducted in occupation currency have relied upon findings of the
International Military Tribunals at Nuremberg and Tokyo as evidence, even conclusive evidence
of the illegality of the war which resulted in the occupation.
In general the decisions of the international tribunals provide evidence of the legally permitted
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CONCEPT OF OPPOSABILITY
Concept of opposability which is now part of customary international law is of value where the
relationship between international law and municipal law is concerned.
In contentious cases before an international tribunal one of the parties may invoke a
rule,institution or regime under its own domes tic law in order to oppose the other parties case
or claim.
Another manner in which municipal law may be of importance in a case before an international
tribunal arises from the doctrine of opposability.
This doctrine allows one state to invoke against, or ‘oppose’ to, another state a rule of its own
municipal law. As a general principle, provided that the rule of municipal law is not contrary to
rules of international law it may be legitimately opposed in order to defeat the international
claims of the other state.
See Anglo-Norwegian Fisheries case (1951)11
CASE 22
Anglo-Norwegian Fisheries case (1951)11
The ICJ held that a Norwegian law delimiting an exclusive fishery zone along almost 1,000 miles of
coastline was not contrary to international law and therefore could be successfully opposed to defeat
British claims to fish in the disputed waters.
For instances for a claim in the international tribunal between state A and B where A relies on
some ground in support of its claim. State B may seek to invoke as against A i.e. oppose A some
rule, institution or regime under B’s domestic law in order to defeat the ground claim set up by
State A.
As a general principle if the domestic rule, institution or regime is in accordance with
International law this may be opposed to State A in order to defeat its ground of claim.
However if the rule, institution or regime is not in accordance with international law it may not
See the North Sea Continental Shelf Case
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be so opposed.
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CASE
North Sea Continental Shelf Case
The German said they are not party to the Geneva Convention on Continental Shelf’s and as a result
Article 6 did not bind it.i.e they were claiming liberty of Article 6.
Netherlands and Denmark were of the opinion that Article 6 codify’s a pre-existing law of customary
international law which forms part of law; to oppose Germany’s claim that they were not bound by the
equidistant principle espoused in Article 6 of the Geneva Convention.
In other words Demark and Netherlands sought to rely on an alleged fact that the equidistance principle
had become part of customary international law so that it would be obligatory for Germany i.e even
though Article 6 of the 1958 Geneva Convention on Continental Shelf was not as such opposable to
Germany.
The Court held that the equidistance principle had not developed into a rule of customary international
law because there was no evidence of opinio juris and that as such it would not be invoked against
Germany in order to defeat its claim that it was not bound by the provisions of the convention.
The court further concluded that the parties were not under obligation to apply the 1958 Convention or
the equidistance principle as a mandatory principle of customary international law.
See also Fisheries Jurisdiction Case Merit Case (1974) ICJR pg 175 (Germany vs. Iceland)
CASE
Fisheries Jurisdiction Case Merit Case (1974) ICJR pg 175 (Germany vs. Iceland)
The United Kingdom invoked the jurisdiction of the I.C.J. pursuant to art. 36(1) of the I.C.J. Statute in
reliance upon an Exchange of Notes of 11 March 1961 with the respondent State, resolving a dispute
arising out of the latter's assertion in 1958 of a 12-mile exclusive fishing zone upon terms, inter alia, that
the United Kingdom would no longer object to such a zone in principle and that Iceland should give six
months’ notice of any further extension of her fisheries jurisdiction, ‘and, in case of a dispute in relation
The application arose out of a resolution of the Icelandic legislature of 15 February 1972 envisaging the
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extension of the exclusive zone to 50 miles. Iceland failed to appear in the proceedings. Examining the
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to such an extension, the matter sh[ould], at the request of either party, be referred to the [I.C.J.]’.
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matter of jurisdiction ex proprio motu in accordance with its practice, on 2February 1972 the Court held
(14 to 1) that it had jurisdiction.
On the face of it, the dispute was exactly within the compromissory clause and this was borne out
completely by the negotiations leading up to the Exchange of Notes, which in the circumstances of the
case it was desirable to explore. Further, the thesis understood to be entertained by Iceland that a
fundamental change of circumstances had rendered earlier agreements on fishery limits no longer
applicable could not affect the obligation to submit to the Court's jurisdiction: 1973 I.C.J. Rep. 3. In
response to the parallel application of the Federal Republic of Germany on the basis of an Exchange of
Notes of 19 July 1961 containing an identical jurisdictional clause, Iceland similarly failed to appear and
the Court similarly held (14 to 1) that it had jurisdiction on the same grounds: 1973 I.C.J. Rep. 49.
The applicants, the United Kingdom and the Federal Republic of Germany, having on 19 July and 5June
1972 respectively, requested the indication of interim measures of protection, the Court, on 17 August
1972, indicated (14 to 1) that each of the parties should refrain from any action which might aggravate
the disputes and should ensure that no action was taken which might prejudice the rights of its
opponent; that Iceland should refrain from enforcing its regulations beyond the 12-mile exclusive zone
earlier agreed upon; and that the United Kingdom and Germany should limit their annual catches in the
disputed areas to specified totals pending final judgment. By further orders of 12 July 1973, following its
findings that it had jurisdiction, the Court confirmed these measures: 1973 I.C.J. Rep. 12, 30; 1973 I.C.J.
Rep. 302, 320.
In its judgments of 25 July 1974, the Court found (10 to 4)
1. that the Regulations of 1972, constituting a unilateral extension of the exclusive fishing rights of
Iceland to 50 nautical miles from the baselines specified, were not opposable to the applicant
Governments;
2. that in consequence Iceland was not entitled unilaterally to exclude British or German fishing
vessels from the areas between the 12- and 50-mile limits or to impose restrictions on their
activities; and held (10–4)
3. that the parties were under mutual obligations to undertake negotiations in good faith for the
equitable settlement of their differences concerning their respective rights in the areas in
question; and
a) that in the distribution of the fishing resources of these areas Iceland was entitled to a
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preferential share to the extent of the special dependence of her people on the
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4. that in these negotiations the parties were to take into account inter alia
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fisheries;
b) that by reason of its fishing activities there the United Kingdom also had established
rights in those resources;
c) the obligation to pay due regard to the interests of other States in the conservation and
equitable exploitation thereof;
d) that the rights of the several parties should each be given effect to the extent
compatible with the conservation and development of such resources in the areas
concerned and with the interests of other States in their conservation and equitable
exploitation; and
e) their obligation to keep under review such resources and to examine together, in the
light of scientific and other available information, such measures as might be required
for conservation, etc., making use of the machinery established by the North-East
Atlantic Fisheries Convention or other agreed means.
The Court observed that State practice revealed an increasing and widespread acceptance of the
concept of preferential fishing rights for coastal States, although that concept was not compatible with
the exclusion of all fishing activity of other States. The Exchange of Notes as a whole, and in particular its
final provision as to advance notice of any further extension of regulation, impliedly acknowledged the
existence of U.K. fishing rights: 1974 I.C.J. Rep. 3.
The Court was moved by similar considerations in the parallel proceedings at the instance of the
German Federal Republic. But its simultaneous judgment in those proceedings is distinguished by the
specific negation of the applicant's submission that the respondent was in principle responsible for
damage to German fishing vessels interfered with and under an obligation to pay full compensation as
being too abstract in the absence of any request that the Court should receive evidence and determine
the amount of damages due: 1974 I.C.J. Rep. 175.
PRACTICE QUESTION
International municipal law has for the most part separate fields of operation and each is supreme in
conflict arise, what is involved is not a conflict of legal systems but rather a conflict of obligations. If
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therefore a State is by its municipal law unable to act in a manner required by international law, it is
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its own domain. Nevertheless on occasions, they have a common field of application and should a
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not its internal law which is called in question but rather the state’s ;liability on the international
plane for the non-fulfillment of its international obligation” ANON
Critically examine the theories, legal rules and state practice pertaining to the relationship between
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international law and municipal law in the light of the above statement.
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LECTURE 7: 22nd FEBURUARY 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 5: INTERNATIONAL PERSONALITY
International Personality refers to the capacity to be a bearer of rights and duties under
International law.
For an entity to qualify as an International legal person it must satisfy 4 essential elements.
1. The entity must have duties and thereby incur responsibilities for any conduct which is
at variance with that prescribed by the international law system.
2. The entity must be capable of claiming the benefits of rights conferred by the rules of
International law. This is more than being a mere beneficiary of a right because a
considerable number of rules may serve the interests of groups of persons who do not
have a legal claim to the benefits conferred by the particular legal rules. E.g.in the law of
trusts the one who has the benefit conferred by the trust is the beneficiary but has no
legal capacity to enforce that trust. In the Law of contracts the infants have rights but do
not have the capacity to enforce the contracts.
3. The entity of person must possess the capacity to enter into contractual or other legal
relations with other entities or persons recognized by that particular system of law.(In
this case International Law).
4. The entity (An International Legal Person) must possess the capacity to enjoy some or
all of the privileges and immunities from the jurisdiction of the municipal courts of
states this being an attribute of an international legal person as distinct from one
governed by Municipal law. For example see Article 4 and 138 of the EAC Treaty.
ARTICLE 4 OF THE EAC TREATY
Legal Capacity of the Community
1. The Community shall have the capacity, within each of the Partner States, of a body corporate with
perpetual succession, and shall have power to acquire, hold, manage and dispose of land and other
property, and to sue and be sued in its own name.
functions.
3. The Community shall, as a body corporate, be represented by the Secretary General.
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to do all things, including borrowing, that are necessary or desirable for the performance of those
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2. The Community shall have power to perform any of the functions conferred upon it by this Treaty and
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ARTICLE 138 OF THE EAC TREATY
Status, Privileges and Immunities
1. The Community shall enjoy international legal personality.
2. The Secretary General shall conclude with the Governments of the Partner States in whose territory
the headquarters or offices of the Community shall be situated, agreements relating to the privileges
and immunities to be recognised and granted in connection with the Community.
3. Each of the Partner States undertakes to accord to the Community and its officers the privileges and
immunities accorded to similar international organisations in its territory.
Under International law entities which have International legal rights and duties, the capacity to
defend or enforce these rights, capacity to enter into binding international agreements and to
conclude treaties and the capacity to enjoy privileges and immunities from national jurisdiction
are described as international legal persons and constitute subjects of International law.
The traditional view is that the only subjects of International law are STATES. They alone have or
enjoy unlimited International personality. Other entities enjoy only limited International
personality.
This is because contemporary international law, has recognized the independent existence of a
variety of International institutions and in a number of cases has imposed obligations on and
granted rights to individuals as well as International Organizations and other non state entities
who or which enjoy a degree of International personality especially for functional purposes.
(Apart from states which enjoy unlimited personalities there are others e.g. the UN, EU, AU or
EAC which enjoy limited international personality especially for carrying out its functions. The
UN Charter says that UN enjoys certain privileges )
Indeed, the International Court of Justice recognized the diversity of International personality in
the Reparations Case
Reparation For Injuries Suffered in the Service of the United Nations (1949)-The Reparation Case
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The International Court of Justice recognized the diversity of International personality by stating that,
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CASE
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“what the subjects of law in any legal system are not necessarily identical in their nature or in the extent
of their rights.”
With respect to the International legal personality of International organizations the court said, “In the
opinion of the court the UNO was intended to exercise and enjoy ---functions and rights which can only
be explained on basis of the possession of a large measure of International personality and the capacity
to operate upon an International plane. It is a present Supreme type of International organization and it
could not carry out the intentions of its founders if it was devoid of international personality. It must be
acknowledged that its members, by entrusting certain functions to it, with the attendant duties and
responsibility, have clothed it with the competence required to enable those functions to be effectively
discharged. Accordingly, --- the organization is an International person. That is not the same thing as
saying that it is a state --- or that its legal personality and rights and duties are the same as those of a
state. --- what it does mean is that it is a subject of International law and capable of possessing
International rights and duties, and that it has capacity to maintain its rights by bringing International
claims.”
ESTABLISHED INTERNATIONAL LEGAL PERSONS
1. Independent Sovereign States
Independent Sovereign States remain the primary subjects of International law as they occupy
the central position the International legal order.
They are international law persons per excellence.
Provided the conditions or legal criteria for statehood are met the international legal personality
of states cannot be doubted. (Western Sahara is not a state and the Palestine despite having a
government its statehood is in doubt i.e. it is not a member of the UN).
2. Political Settlements (Political Entities Legally Proximate to States)
Political Settlements both in Bilateral and multilateral treaties have produced political entities
possessing certain autonomy, fixed territory, population and some legal capacity on the
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International claim.
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For instance under the 1919 Treaty of Versailles ( the one that formally ended the 1st World
war) created the Free City of Danzig which was organized as a state with its own constitution,
flag and currency and the powers to confer citizenship on the inhabitants of Danzig.
The Italian Peace Treaty of 1947 provided for the creation of the Free Territory of Trieste with
features broadly similar to those of Free City of Danzig but placed under direct control of the
United Nations Security Council.
There was an attempt to enter Free City of Jerusalem but this was defeated by UK and US in
which Arabs and Jews would enjoy equal rights.
From the point of view of international law the Free City was neither an independent state nor
subordinate to any sovereign states.
The Permanent Court of International Justice recognized that the Free City had international
personality and that the capacity to enter into relations with sovereign states.
3. Condominia
These are International Legal Persons created by agreement between two states which exercise
joint sovereignty over a certain territory and its inhabitants.
The present day Vanuatu (Previously called New Hebrides) in the South Pacific was a
condominium jointly administered by France and Great Britain based on the Treaty of October
20, 1906 and the Protocol of August 6, 1914 until it became independent in 1980.
A further condominium of historical importance is the relationship between Great Britain and
Egypt with the regard to Sudan.
The basis for the arrangement was the Agreement of January 19th 1899.
By the Treaty of February 12th 1953 between Great Britain and Egypt the Condominium was
lifted to the extent that it was left to the Sudan to choose between full independence and
further association with Egypt.
The condominium is an association of state in the widest sense. The territory under
condominium has no international personality of its own.
The existence of a condominium rests upon a title in international law pursuant to which a
The legal title to the condominium binds the relevant states like Egypt and Great Britain in such
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a way that their sovereignty over the territory appears as a common sovereignty.
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number of states are vested with sovereignty over the territory.
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The decisive element for the condominium is the common territorial sovereignty which
distinguishes it from other associations of states formed for exploitation of areas in common.
4. Belligerents /Insurgents
Quite often political and military dissidents within a sovereign state results in large scale armed
conflict with rebels succeeding in controlling a modicum of territory and setting up an
operations structure capable of effectively wielding authority over the individuals living there.
When this happens the insurrection (revolution/uprising) of parties normally claims some
nature of recognition as an international subject.
States have traditionally been hostile to belligerents in their territory on the grounds that they
do not like the status quo to be disrupted by people who seek to topple the lawful government
and forcefully change the old fabric of the state.
Consequently they prefer to treat belligerency as a domestic occurrence and the rebels as a
group of common criminals.
The International community has also been reluctant to grant civil upheavals in states
International legal standing in order to avoid encouraging secession and irredentist tendencies
that may lead to International anarchy. (e.g Shifta Movement)
N/B (An irredentist tendency is what African states refused. African states are not international
states it’s a conglomeration/mass (Berlin 1884 -85) (The Masai have no idea there is a border
there is no understanding of the illegality of crossing the border) Irredentist is where there is a
nation that seeks a greater territory borders outside its present by encompassing other
communities’ e.g. Somalia
However, when the civil upheavals reach such proportions that
1. The rebels occupy and have effective control of a substantial portion of national
territory
2. The civil commotion has reached such intensity and duration that their exists an armed
conflict of a general character and
3. The rebels conduct the hostilities in accordance with the laws and usages of war (“Jus in
present the necessary basis for recognition of the emergence of a subject of
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international law to which belligerent rights may be accorded.
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Bello”) through organized groups acting under a responsible authority then there is
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PRESCRIPTIVE JURISDICTION:
This refers to the right to make laws for one own states jurisdiction e.g Ethiopia in early 90s
when Eritrea was receding, or the Arab Spring
It is for states i.e. both the state against which the civil strife breaks out and 3rd states to
appraise the situation by granting or withholding the recognition of belligerency whether the 3
requirements (stated above) have been fulfilled.
If the states against which the belligerents are fighting grants them the recognition of
belligerency namely admits that the conflict under way is an international armed conflict or if
3rd states so recognizes it, then the rebels are automatically upgraded to International subjects
entitled to hold the rights and obligations deriving from Jus in Bello.
Recognition internationalizes the civil strike e.g. secession of Eritrea from Ethiopia
Loss of war is a branch of international law. This is contained in 4 conventions adopted in
Geneva in 1999 if one is a soldier fighting with an enemy soldier who surrenders then one has to
rescue him. Soldiers at sea, you don’t leave the enemy to drown you have to rescue them.
Bombings are not done on civilians but only on military.
Belligerent’s posses a limited form of international personality which is transient (temporary as
the government in power may get reinforcement) in character.
This is because they may be quelled by the government in power and disappear or may seize
power and install themselves in the place of the government or may secede (withdraw) and join
another state or become a new international subject. Refer to Nigeria (Biafran War) wanted to
secede
Accordingly they cannot claim rights contingent upon the permanent character of international
subjects such as ceding the territory they are in de facto control of to another international
subject. (Until rebels in Ethiopia formed a new state called Eritrea they did not have the capacity
to transfer the territory to any other international personality and were only in de facto control.)
5. Individuals
Jurists are unanimous in their opinion that individuals are the proper concern of the IL. However
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subjects because individuals are still under the exclusive control of states.
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many contend that individuals may not be regarded as having the legal status of international
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Indeed, as a general rule individuals lack standing to assert violations of IL absent intervention
by their states of nationality.
Some jurists hold that individuals are proper subjects of international law. Others while
admitting that individuals are subjects of international law qualify this by saying that such
subjectivity is not possible without the intervention of their states of nationality. On the other
hand other writers have argued that the fact that because the individual as a beneficiary of the
international legal rights cannot have them enforced at this instance and in his own name
means that the individual is only an object of International law.
The individual lacks the procedural capacity to espouse his or her claims before international
tribunals and such claims can be entertained only at the instance of the states with the
individual is a national or in certain circumstances by the international institutions of which he is
a servant/subject. (Reparations case – Count Bernadotte)
Whichever view one holds it is not worthy that contemporary International law has directly
imposed obligations on individuals such that states have lost the exclusive monopoly over
individuals.
For instance, in the area of armed conflict rules of customary and conventional International law
provide that individuals who violate the international rules of warfare will be criminally liable for
such violation regardless of their official positions as state agents.
Individuals are also criminally liable for committing crimes against humanity, genocide,
aggression, terrorism and torture both in their capacity as state officials as well as in their
private capacity. (Refer to Tanzania, Kenya with the international tribunal)
Another category of individuals who are subjects of International law are Pirates. Article 100 of
the 1992 UN Convention of the Law of the Sea provides that all states shall cooperate in the
fullest extent in the regression of piracy on the high seas or in any other place outside the
jurisdiction of any state. Pirates are regarded as enemies of human kind.
Under Article 105 of the Convention any state may seize a pirate ship or aircraft or a ship taken
by piracy or under the control of pirates and arrest the persons and cease the property on
board.
The court of the states which carried out the seizure may define upon the penalties to be
imposed and may decide the action to be taken on regard to the ships or aircraft subject to the
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rights of the 3rd parties’ acting in good faith.
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A parallel development of the International legal status of individuals is a conferment of rights
upon individuals against the states by the treaty of which they are nationals. For instance
establishment of human rights within the UN system has removed the entire concept from the
domestic jurisdiction of states to the international plane there by affording international
protection to individuals whose rights may be infringed by their states.
For instance the 1950 European Convention of Human Rights after proclaiming the rights and
freedom to which every individual is entitled sets up the European Commission of Human rights
and the European Court of Human Rights respectively in order to ensure observance of the
engagements undertaken by the state parties of the convention.
Similarly The 1981 African Charter on Human and Peoples Rights and the 1998 Protocol there
to established the African Commission and the African Courts of Human and Peoples rights as
the Guardians of the Charter.
However the problem with these and similar international legal instruments is that the
substantive rights they lay down may only be exercised by individuals within the domestic legal
system of each party of the states.
Besides the individuals do not have direct procedural rights to petition international bodies to
seek redress in the event of violation of their rights.(1966 International covenant legal/civil
rights)
A notable exception however is the European Convention as revised in 1998 by Protocol 2 of
1994. Prior to the entry into force of the protocol individuals would access the European Courts
of Human rights only through the commission. The protocol abolished the commission so that
there is no longer an administrative barrier between the individual and the court.
Another limitation is that the rights in question are only granted by treaties with the respect to
certain well defined matters such as labor relations and refugee status and only states that are
parties to these treaties accept the obligations towards individuals.
In essence, in contemporary international law individuals posses international legal status. They
have a few obligations deriving from customary international law. In addition, they have
procedural rights only towards states that have concluded treaties recently envisaging such
The international legal status of individuals is unique in the sense that they have a
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lopsided/irregular position with the International community. As far as their obligations are
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rights.
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concerned, they are associated with other members of the international community. In contrast
they do not posses rights in relation to all members of that community.
In order to differentiate the position of the individuals from that of states it may be stated that
while states have international legal personality proper, individuals possess unlimited locus
standi in international law.
6. The Holy See
The international legal personality of the Pope has been recognized since medieval times. These
personality was based on the Popes both positions a Spiritual Head of the Church and as The
Ruler of the Papal States.
As spiritual head of the Catholic Church, the pope occupies a distinct position.
As a ruler of the States he was as sovereign as any other monarch.
These positions remained unchanged until 1870 when Rome fell and Italy annexed the Papal
States. The pope was deprived of his temporal sovereignty but retained the International
Personality flowing from his position as spiritual head of the Catholic Church.
By an Act of the Italian Parliament known as The Law of Guarantee 1871 the Italian state
granted certain guarantees to the pope and the Holy See.
The relationship between the Holy See and 3rd states was henceforth uncertain although
several states sent envoys to the Pope and agreements known as concordats continued to be
concluded.
The position of the Holy See was clarified by the 1929 Lateran Treaty. Apart from regulating
the status of the Catholic Church in Italy and providing for the financial compensation of the
Holy See for the losses incurred in the annexation of the Papal States, the Lateran Treaty also
created the Vatican States thereby constituting a physical basis for the legal personality of the
Holy See. The Vatican State is the territory occupied by the Holy See.
From the point of view of international law the Holy See is a sovereign state that maintains
diplomatic relations with 3rd states and concludes both bilateral and multilateral treaties.
The Vatican State has a military separate from the Papal States and also the Right of audience
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with the president.
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7. International Organizations
States increasingly find it convenient to establish international machinery for the purpose of
carrying out tasks of mutual interests. They therefore institute distinct centres of action for the
furtherance of common goals designed to perform only those activities that states delegate to
them. E.g. African states established the OAU for purposes of carrying out mutual interests
The object of the constituent instrument (like the UN charter) of such international machinery
must be to create a new subject of law endowed with a certain autonomy to which the states
parties entrusts the task of realizing common goals.
An international organization must satisfy at least three conditions in order for it to qualify as
an international law person namely
1. It must be a permanent association of states created to attain certain common
objectives and having its own administrative organs.
2. It must exercise some power that is distinct from the sovereign power of its member
states.
3. Its competences must be exercisable on an international level and not confined
exclusively the national system of its member states. (The UN must have competences
see Article 6)
The leading judicial authority on the personality of international organizations is the Advisory
opinion of the ICJ in the Reparations Case.
CASE
Advisory opinion of the ICJ in the Reparations Case.(1949) ICJ Rep 174
It must be noted however that when states create an international organization they set it up for
specific purposes and in this respect the organizations legal personality must be treated as being
relative to those purposes
Consequently the question whether an international organization posses international legal
personality can only be answered by examining its functions and powers expressly conferred by or to
be implied from its constituent implement and developed in practice
3December 1948 in which it submitted the following legal questions to the I.C.J. for an advisory opinion:
I.
In the event of an agent of the United Nations in the performance of his duties suffering injury
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Count Bernadotte, the U.N. Mediator in Palestine), the General Assembly adopted Res. 258 (III) of
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Following the deaths of certain persons while engaged in the service of the United Nations (principally
PUBLIC INTERNATIONAL LAW-GPR 301
in circumstances involving the responsibility of a State, has the United Nations, as an
Organization, the capacity to bring an international claim against the responsible de jure or de
facto government with a view to obtaining the reparation due in respect of the damage caused
a) to the United Nations,
b) to the victim or to persons entitled through him?
II.
In the event of an affirmative reply on point I (b), how is action by the United Nations to be
reconciled with such rights as may be possessed by the State of which the victim is a national?’
On 14 April 1949, the Court advised that:
1. on Question I (a) (unanimously) the United Nations had capacity to bring an international claim
against a State which had caused it damage by a breach of its obligations towards the United
Nations. The functions and rights with which the Member States had endowed the United
Nations could only be explained on the basis of the possession of a large measure of
international personality and the capacity to operate upon an international plane: the members,
by entrusting certain functions to the United Nations, with the attendant duties and
responsibilities, had clothed it with the competence required to enable those functions to be
effectively discharged. The United Nations was an international person, i.e., was a subject of
international law and capable of possessing international rights and duties, having the capacity
to maintain its rights by bringing international claims;
2. on Question I (b) (11 to 4) the United Nations had legal capacity to give functional protection to
its agents. The powers which were essential to the performance of the duties of the
Organization must be considered as resulting necessarily from the Charter, and the provisions of
the Charter concerning the functions of the Organization implied for it the power to afford its
agents a degree of protection related to the performance of their duties for the Organization;
3. since the members of the United Nations had created an entity endowed with an objective
international capacity, the Court's conclusions on Questions I (a) and (b) applied whether or not
the defendant State was a member of the United Nations: ‘fifty States, representing the vast
majority of the members of the international community, had the power, in conformity with
international law, to bring into being an entity possessing objective international personality,
and not merely personality recognized by them alone, together with capacity to bring
on Question II (10 to 5), there was no necessary order of priority between the rights of
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4.
diplomatic protection by the victim's national State and those of functional protection by the
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international claims’ (at 185);
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United Nations, although in the case of Member States the duty of assistance laid down in art. 2
of the Charter must be stressed; and
5. since the United Nations’ claim arising from injury to its agent was not based on the victim's
nationality but on his functions as an agent, it was immaterial whether the defendant State was
the national State of the victim.
CASE
Advisory Opinion on The Legality of the Threat or Use of Nuclear Weapons (1996) ICJ Rep 9890
As the ICJ stated in its “International organizations are subjects of international law which do not know
unlike states posses a general competence. International organizations are governed by the principle of
specialty, that is to say, they are invested by the states which create them with powers, the limits of
which are a function of the common interests whose promotion those states entrust to them.”
As international legal persons, international organizations enjoy a number of privileges and
rights.
i.
They have the right to enter into international agreements with non member states on
matters within their progress. These agreements are all legally binding effects of
international treaties proper.
ii.
They have the right to enjoy immunities and privileges from the jurisdiction as well as
execution of states courts for acts and activities performed to attain the goals laid down
to their constituent instruments.
iii.
They have the right to protection of all their agents acting in authority of their 3rd
states in their official capacity as international civil servants.
iv.
They have the right to bring an international claim with a view to obtaining reparation
for any damage caused by member states or by 3rd states to their assets or their
officials acting on their behalf.
Look at the following cases
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CASE
Case Concerning East Timor (1995) ICJ Rep 90
Procedural history (paras. 1-10)
In its Judgment the Court recalls that on 22 February 1991 Portugal instituted proceedings against
Australia concerning "certain activities of Australia with respect to East Timor". According to the
Application Australia had, by its conduct, "failed to observe -- the obligation to respect the duties and
powers of [Portugal as] the administering Power [of East Timor].. and... the right of the people of East
Timor to self-determination and the related rights". In consequence, according to the Application,
Australia had "incurred international responsibility vis-…-vis both the people of East Timor and
Portugal". As the basis for the jurisdiction of the Court, the Application refers to the declarations by
which the two States have accepted the compulsory jurisdiction of the Court under Article 36, paragraph
2, of its Statute. In its Counter-Memorial, Australia raised questions concerning the jurisdiction of the
Court and the admissibility of the Application. In the course of a meeting held by the President of the
Court the Parties agreed that these questions were inextricably linked to the merits and that they should
therefore be heard and determined within the framework of the merits. The written proceedings having
been completed in July 1993, hearings were held between 30 January and 16 February 1995. The
Judgment then sets out the final submissions which were presented by both Parties in the course of the
oral proceedings.
Historical background (paras. 11-18)
The Court then gives a short description of the history of the involvement of Portugal and Indonesia in
the Territory of East Timor and of a number of Security Council and General Assembly resolutions
concerning the question of East Timor. It further describes the negotiations between Australia and
Indonesia leading to the Treaty of 11 December 1989, which created a "Zone of Cooperation... in an area
between the Indonesian Province of East Timor and Northern Australia".
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The Court then summarizes the contentions of both Parties.
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Summary of the contentions of the Parties (paras. 19-20)
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Australia's objection that there exists in reality no dispute between the Parties (paras. 21-22)
The Court goes on to consider Australia's objection that there is in reality no dispute between itself and
Portugal. Australia contends that the case as presented by Portugal is artificially limited to the question
of the lawfulness of Australia's conduct, and that the true respondent is Indonesia, not Australia.
Australia maintains that it is being sued in place of Indonesia. In this connection, it points out that
Portugal and Australia have accepted the compulsory jurisdiction of the Court under Article 36,
paragraph 2, of its Statute, but that Indonesia has not.
The Court finds in this respect that for the purpose of verifying the existence of a legal dispute in the
present case, it is not relevant whether the "real dispute" is between Portugal and Indonesia rather than
Portugal and Australia. Portugal has, rightly or wrongly, formulated complaints of fact and law against
Australia which the latter has denied. By virtue of this denial, there is a legal dispute.
Australia's objection that the Court is required to determine the rights and obligations of Indonesia
(paras. 23-35)
The Court then considers Australia's principal objection, to the effect that Portugal's Application would
require the Court to determine the rights and obligations of Indonesia. Australia contends that the
jurisdiction conferred upon the Court by the Parties' declarations under Article 36, paragraph 2, of the
Statute would not enable the Court to act if, in order to do so, the Court were required to rule on the
lawfulness of Indonesia's entry into and continuing presence in East Timor, on the validity of the 1989
Treaty between Australia and Indonesia, or on the rights and obligations of Indonesia under that Treaty,
even if the Court did not have to determine its validity. In support of its argument, it refers to the
Court's Judgment in the case of the Monetary Gold Removed from Rome in 1943. Portugal agrees that if
its Application required the Court to decide any of these questions, the Court could not entertain it. The
Parties disagree, however, as to whether the Court is required to decide any of these questions in order
to resolve the dispute referred to it.
Australia, which consists in having negotiated, concluded and initiated performance of the 1989 Treaty
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with Indonesia, and that this question is perfectly separable from any question relating to the lawfulness
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Portugal contends first that its Application is concerned exclusively with the objective conduct of
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of the conduct of Indonesia.
Having carefully considered the argument advanced by Portugal which seeks to separate Australia's
behaviour from that of the Indonesia, the Court concludes that Australia's behaviour cannot be assessed
without first entering into the question why it is that Indonesia could not lawfully have concluded the
1989 Treaty, while Portugal allegedly could have done so; the very subject-matter of the Court's decision
would necessarily be a determination whether, having regard to the circumstances in which Indonesia
entered and remained in East Timor, it could or could not have acquired the power to enter into treaties
on behalf of East Timor relating to the resources of its continental shelf. The Court could not make such
a determination in the absence of the consent of Indonesia.
The Court rejects Portugal's additional argument that the rights which Australia allegedly breached were
rights erga omnes and that accordingly Portugal could require it, individually, to respect them regardless
of whether or not another State had conducted itself in a similarly unlawful manner.
In the Court's view, Portugal's assertion that the right of peoples to self-determination, as it evolved
from the Charter and from United Nations practice, has an erga omnes character, is irreproachable. The
principle of self-determination of peoples has been recognized by the United Nations Charter and in the
jurisprudence of the Court; it is one of the essential principles of contemporary international law.
However, the Court considers that the erga omnes character of a norm and the rule of consent to
jurisdiction are two different things. Whatever the nature of the obligations invoked, the Court could
not rule on the lawfulness of the conduct of a State when its judgment would imply an evaluation of the
lawfulness of the conduct of another State which is not a party to the case.
The Court goes on to consider another argument of Portugal which, the Court observes, rests on the
premise that the United Nations resolutions, and in particular those of the Security Council, can be read
as imposing an obligation on States not to recognize any authority on the part of Indonesia over East
Timor and, where the latter is concerned, to deal only with Portugal. Portugal maintains that those
resolutions would constitute "givens" on the content of which the Court would not have to decide de
governing territory and its people has the right to self-determination, and that the express reference to
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The Court takes note of the fact that, for the two Parties, the Territory of East Timor remains a non-self
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novo.
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Portugal as the "administering Power" in a number of the above-mentioned resolutions is not at issue
between them. The Court finds, however, that it cannot be inferred from the sole fact that a number of
resolutions of the General Assembly and the Security Council refer to Portugal as the administering
Power of East Timor that they intended to establish an obligation on third States to treat exclusively
with Portugal as regards the continental shelf of East Timor. Without prejudice to the question whether
the resolutions under discussion could be binding in nature, the Court considers as a result that they
cannot be regarded as "givens" which constitute a sufficient basis for determining the dispute between
the Parties.
It follows from this that the Court would necessarily have to rule upon the lawfulness of Indonesia's
conduct as a prerequisite for deciding on Portugal's contention that Australia violated its obligation to
respect Portugal's status as administering Power, East Timor's status as a non-self governing territory
and the right of the people of the Territory to self-determination and to permanent sovereignty over its
wealth and natural resources. Indonesia's rights and obligations would thus constitute the very subject
matter of such a judgment made in the absence of that State's consent. Such a judgment would run
directly counter to the "well-established principle of international law embodied in the Court's Statute,
namely, that the Court can only exercise jurisdiction over a State with its consent" (Monetary Gold
Removed from Rome in 1943, I.C.J. Reports 1954, p. 32).
Conclusions (paras. 36-37)
The Court accordingly finds that it is not required to consider Australia's other objections and that it
cannot rule on Portugal's claims on the merits, whatever the importance of the questions raised by
those claims and of the rules of international law which they bring into play.
The Court recalls in any event that it has taken note in the Judgment that, for the two Parties, the
Territory of East Timor remains a non-self governing territory and its people has the right to selfdetermination.
CASE
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In its Advisory Opinion which the General Assembly of the United Nations had requested on two
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The Western Sahara Case (1975) ICJ Rep 12
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questions concerning Western Sahara, the Court,
With regard to Question I, "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain a territory belonging to no one (terra nullius)?",
- was unanimously of opinion that Western Sahara (Rio de Oro and Sakiet El Hamra) at the time of
colonization by Spain was not a territory belonging to no one (terra nullius).
With regard to Question II, "What were the legal ties between this territory and the Kingdom of
Morocco and the Mauritanian entity?", the Court
- was of opinion that there were legal ties between this territory and the Kingdom of Morocco of the
kinds indicated in the penultimate paragraph of the Advisory Opinion;
- was of opinion that there were legal ties between this territory and the Mauritanian entity of the kinds
indicated in the penultimate paragraph of the Advisory Opinion.
The penultimate paragraph of the Advisory Opinion was to the effect that:
The materials and information presented to the Court show the existence, at the time of Spanish
colonization, of legal ties of allegiance between the Sultan of Morocco and some of the tribes living in
the territory of Western Sahara. They equally show the existence of rights, including some rights relating
to the land, which constituted legal ties between the Mauritanian entity, as understood by the Court,
and the territory of Western Sahara. On the other hand, the Court's conclusion is that the materials and
information presented to it do not establish any tie of territorial sovereignty between the territory of
Western Sahara and the Kingdom of Morocco or the Mauritanian entity. Thus the Court has not found
legal ties of such a nature as might affect the application of General Assembly resolution 1514 (XV) in
the decolonization of Western Sahara and, in particular, of the principle of self-determination through
the free and genuine expression of the will of the peoples of the Territory.
The Court first recalls that the General Assembly of the United Nations decided to submit two questions
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(paras. 1-13 of Advisory Opinion)
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Course of the Proceedings
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for the Court's advisory opinion by resolution 3292 (XXIX) adopted on 13 December 1974 and received
in the Registry on 21 December. It retraces the subsequent steps in the proceedings, including the
transmission of a dossier of documents by the Secretary-General of the United Nations (Statute, Art. 65,
para. 2) and the presentation of written statements or letters and/or oral statements by 14 States,
including Algeria, Mauritania, Morocco, Spain and Zaire (Statute, Art. 66).
Mauritania and Morocco each asked to be authorized to choose a judge ad hoc to sit in the proceedings.
By an Order of 22 May 1975 (I.C.J. Reports 1975, p. 6), the Court found that Morocco was entitled under
Articles 31 and 68 of the Statute and Article 89 of the Rules of Court to choose a person to sit as judge
ad hoc, but that, in the case of Mauritania, the conditions for the application of those Articles had not
been satisfied. At the same time the Court stated that those conclusions in no way prejudged its views
with regard to the questions referred to it or any other question which might fall to be decided,
including those of its competence to give an advisory opinion and the propriety of exercising that
competence.
Competence of the Court
(paras. 14-22 of Advisory Opinion)
Under Article 65, paragraph 1, of the Statute, the Court may give an advisory opinion on any legal
question at the request of any duly authorized body. The Court notes that the General Assembly of the
United Nations is suitably authorized by Article 96, paragraph 1, of the Charter and that the two
questions submitted are framed in terms of law and raise problems of international law. They are in
principle questions of a legal character, even if they also embody questions of fact, and even if they do
not call upon the Court to pronounce on existing rights and obligations. The Court is accordingly
competent to entertain the request.
Propriety of Giving an Advisory Opinion
Spain put forward objections which in its view would render the giving of an opinion incompatible with
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the Court's judicial character. It referred in the first place to the fact that it had not given its consent to
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(paras. 23-74 of Advisory Opinion)
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the Court's adjudicating upon the questions submitted.
It maintained
a) that the subject of the questions was substantially identical to that of a dispute
concerning Western Sahara which Morocco, in September 1974, had invited it to submit
jointly to the Court, a proposal which it had refused: the advisory jurisdiction was
therefore being used to circumvent the principle that the Court has no jurisdiction to
settle a dispute without the consent of the parties;
b) that the case involved a dispute concerning the attribution of territorial sovereignty
over Western Sahara and that the consent of States was always necessary for the
adjudication of such disputes;
c) that in the circumstances of the case the Court could not fulfil the requirements of good
administration of justice with regard to the determination of the facts.
The Court considers
a) that the General Assembly, while noting that a legal controversy over the status of
Western Sahara had arisen during its discussions, did not have the object of bringing
before the Court a dispute or legal controversy with a view to its subsequent peaceful
settlement, but sought an advisory opinion which would be of assistance in the exercise
of its functions concerning the decolonization of the territory, hence the legal position
of Spain could not be compromised by the Court's answers to the questions submitted;
b) that those questions do not call upon the Court to adjudicate on existing territorial
rights;
c) that it has been placed in possession of sufficient information and evidence.
Spain suggested in the second place that the questions submitted to the Court were academic and
devoid of purpose or practical effect, in that the United Nations had already settled the method to be
the resolutions adopted by the General Assembly on the subject, from resolution 1514 (XV) of 14
December 1960, the Declaration on the Granting of Independence to Colonial Countries and Peoples, to
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by means of a referendum to be conducted by Spain under United Nations auspices. The Court examines
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followed for the decolonization of Western Sahara, namely a consultation of the indigenous population
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resolution 3292 (XXIX) on Western Sahara, embodying the request for advisory opinion. It concludes
that the decolonization process envisaged by the General Assembly is one which will respect the right of
the population of Western Sahara to determine their future political status by their own freely
expressed will. This right to self-determination, which is not affected by the request for advisory opinion
and constitutes a basic assumption of the questions put to the Court, leaves the General Assembly a
measure of discretion with respect to the forms and procedures by which it is to be realized. The
Advisory Opinion will thus furnish the Assembly with elements of a legal character relevant to that
further discussion of the problem to which resolution 3292 (XXIX) alludes.
Consequently the Court finds no compelling reason for refusing to give a reply to the two questions
submitted to it in the request for advisory opinion.
Question 1: "Was Western Sahara (Rio de Oro and Sakiet El Hamra) at the Time of Colonization by Spain
a Territory Belonging to No One (terra nullius)?"
(paras. 75-83 of Advisory Opinion)
For the purposes of the Advisory Opinion, the "time of colonization by Spain" may be considered as the
period beginning in 1884, when Spain proclaimed its protectorate over the Rio de Oro. It is therefore by
reference to the law in force at that period that the legal concept of terra nullius must be interpreted. In
law, "occupation" was a means of peaceably acquiring sovereignty over territory otherwise than by
cession or succession; it was a cardinal condition of a valid "occupation" that the territory should be
terra nullius. According to the State practice of that period, territories inhabited by tribes or peoples
having a social and political organization were not regarded as terrae nullius: in their case sovereignty
was not generally considered as effected through occupation, but through agreements concluded with
local rulers.
The information furnished to the Court shows
a) that at the time of colonization Western Sahara was inhabited by peoples which, if
b) that Spain did not proceed upon the basis that it was establishing its sovereignty over
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represent them;
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nomadic, were socially and politically organized in tribes and under chiefs competent to
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terrae nullius: thus in his Order of 26 December 1884 the King of Spain proclaimed that
he was taking the Rio de Oro under his protection on the basis of agreements entered
into with the chiefs of local tribes.
The Court therefore gives a negative answer to Question I. In accordance with the terms of the request
for advisory opinion, "if the answer to the first question is in the negative", the Court is to reply to
Question II.
Question 11: "What Were the Legal Ties of This Territory with the Kingdom of Morocco and the
Mauritanian Entity?"
(paras. 84-161 of Advisory Opinion)
The meaning of the words "legal ties" has to be sought in the object and purpose of resolution 3292
(XXIX) of the United Nations General Assembly. It appears to the Court that they must be understood as
referring to such legal ties as may affect the policy to be followed in the decolonization of Western
Sahara. The Court cannot accept the view that the ties in question could be limited to ties established
directly with the territory and without reference to the people who may be found in it. At the time of its
colonization the territory had a sparse population that for the most part consisted of nomadic tribes the
members of which traversed the desert on more or less regular routes, sometimes reaching as far as
southern Morocco or regions of present-day Mauritania Algeria or other States. These tribes were of the
Islamic faith.
Morocco (paragraphs 90-129 of the Advisory Opinion) presented its claim to legal ties with Western
Sahara as a claim to ties of sovereignty on the ground of an alleged immemorial possession of the
territory and an uninterrupted exercise of authority. In the view of the Court, however, what must be of
decisive importance in determining its answer to Question II must be evidence directly relating to
effective display of authority in Western Sahara at the time of its colonization by Spain and in the period
immediately preceding. Morocco requests that the Court should take account of the special structure of
the Sultan, through their caids or sheiks, rather than on the notion of territory. It consisted partly of
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That State was founded on the common religious bond of Islam and on the allegiance of various tribes to
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the Moroccan State.
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what was called the Bled Makhzen, areas actually subject to the Sultan, and partly of what was called
the Bled Siba, areas in which the tribes were not submissive to him; at the relevant period, the areas
immediately to the north of Western Sahara lay within the Bled Siba.
As evidence of its display of sovereignty in Western Sahara, Morocco invoked alleged acts of internal
display of Moroccan authority, consisting principally of evidence said to show the allegiance of Saharan
caids to the Sultan, including dahirs and other documents concerning the appointment of caids, the
alleged imposition of Koranic and other taxes, and acts of military resistance to foreign penetration of
the territory. Morocco also relied on certain international acts said to constitute recognition by other
States of its sovereignty over the whole or part of Western Sahara, including
a) certain treaties concluded with Spain, the United States and Great Britain and Spain
between 1767 and 1861, provisions of which dealt inter alia with the safety of persons
shipwrecked on the coast of Wad Noun or its vicinity,
b) certain bilateral treaties of the late nineteenth and early twentieth centuries whereby
Great Britain, Spain, France and Germany were said to have recognized that Moroccan
sovereignty extended as far south as Cape Bojador or the boundary of the Rio de Oro.
Having considered this evidence and the observations of the other States which took part in the
proceedings, the Court finds that neither the internal nor the international acts relied upon by Morocco
indicate the existence at the relevant period of either the existence or the international recognition of
legal ties of territorial sovereignty between Western Sahara and the Moroccan State. Even taking
account of the specific structure of that State, they do not show that Morocco displayed any effective
and exclusive State activity in Western Sahara.
They do, however, provide indications that a legal tie of allegiance existed at the relevant period
between the Sultan and some, but only some, of the nomadic peoples of the territory, through Tekna
caids of the Noun region, and they show that the Sultan displayed, and was recognized by other States
the session of the General Assembly in 1974 at which resolution 3292 (XXIX), requesting an advisory
opinion of the Court, was adopted. It denotes the cultural, geographical and social entity within which
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The term "Mauritanian entity" (paragraphs 139-152 of the Advisory Opinion) was first employed during
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to possess, some authority or influence with respect to those tribes.
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the Islamic Republic of Mauritania was to be created.
According to Mauritania, that entity, at the relevant period, was the Bilad Shinguitti or Shinguitti
country, a distinct human unit, characterized by a common language, way of life, religion and system of
laws, featuring two types of political authority: emirates and tribal groups.
Expressly recognizing that these emirates and tribes did not constitute a State, Mauritania suggested
that the concepts of "nation" and of "people" would be the most appropriate to explain the position of
the Shinguitti people at the time of colonization.
At that period, according to Mauritania, the Mauritanian entity extended from the Senegal river to the
Wad Sakiet El Hamra. The territory at present under Spanish administration and the present territory of
the Islamic Republic of Mauritania thus together constituted indissociable parts of a single entity and
had legal ties with one another.
The information before the Court discloses that, while there existed among them many ties of a racial,
linguistic, religious, cultural and economic nature, the emirates and many of the tribes in the entity were
independent in relation to one another; they had no common institutions or organs. The Mauritanian
entity therefore did not have the character of a personality or corporate entity distinct from the several
emirates or tribes which comprised it.
The Court concludes that at the time of colonization by Spain there did not exist between the territory
of Western Sahara and the Mauritanian entity any tie of sovereignty, or of allegiance of tribes, or of
simple inclusion in the same legal entity. Nevertheless, the General Assembly does not appear to have
so framed Question II as to confine the question exclusively to those legal ties which imply territorial
sovereignty, which would be to disregard the possible relevance of other legal ties to the decolonization
process.
The Court considers that, in the relevant period, the nomadic peoples of the Shinguitti country
possessed rights, including some rights relating to the lands through which they migrated. These rights
Morocco and Mauritania both laid stress on the overlapping character of the respective legal ties which
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no frontier between the territories and were vital to the very maintenance of life in the region.
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constituted legal ties between Western Sahara and the Mauritanian entity. They were ties which knew
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they claimed Western Sahara to have had with them at the time of colonization (paragraphs 153-160 of
the Advisory Opinion). Although their views appeared to have evolved considerably in that respect, the
two States both stated at the end of the proceedings that there was a north appertaining to Morocco
and a south appertaining to Mauritania without any geographical void in between, but with some
overlapping as a result of the intersection of nomadic routes.
The Court confines itself to noting that this geographical overlapping indicates the difficulty of
disentangling the various relationships existing in the Western Sahara region at the time of colonization.
CASE
The Rainbow Warrior Affair (26 ILM 1346 (1987)
The international activities of NGOs are not always without problems,as the 1995 campaign by
Greenpeace against Shell to prevent the sinking of the Brent-Spar oil platform in the North Atlantic,
although Shell was licensed to do so by the British government, has shown. Using the media and
spectacular stunts, Greenpeace persuaded consumers (for example, in Germany) to boycott Shell’s
products and Shell (to the embarrassment of the British government) gave in, although it remained
convinced by the evidence of technical expertise that its decision was not only reasonable from the
economic point of view, but also environmentally tolerable. (Later Greenpeace apologized to Shell for
using wrong information in its campaign.)
Shortly afterwards, Greenpeace engaged in another spectacular campaign against the resumption of
nuclear tests by the French in the Pacific, a matter which has a delicate precedent in the Rainbow
Warrior affair ten years previously, which involved the first international case in history of an agreement
between a sovereign state and an NGO to submit a dispute to arbitration.
The facts of the Rainbow Warrior affair are briefly as follows. For many years France had been
conducting underground nuclear tests on the Mururoa Atoll in French Polynesia, alleging that these
tests had no real consequences for the environment.Greenpeace had led protests against the French
testsfor more than fifteen years, including attempts, opposed by the French navy,to send vessels into
In 1985 Greenpeace again planned to send several ships, including the Rainbow Warrior, registered in
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and 1982.
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the waters prohibited for navigation by France which surround the Mururoa Atoll, particularly in 1973
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Britain, into the neighbourhood of the nuclear testing area. On 10 July 1985, an undercover operation
ordered by the French military security service sank the Rainbow Warrior in New Zealand’s Auckland
Harbour with two explosive devices and thereby also killed a crewman.
Two French agents caught in New Zealand were sentenced to ten years’ imprisonment for manslaughter
and seven years for wilful damage (the terms to run concurrently). The French government refused to
extradite to New Zealand other French officials involved, and sought negotiations for the release and
return to France of the two agents who, it argued, had acted under military orders.
New Zealand suspended the negotiations in May 1986 after France had imposed economic sanctions by
impeding New Zealand imports. In June 1986 the two states agreed to refer all issues to the SecretaryGeneral of the United Nations for a ruling. Perez de Cuéllar achieved a quick settlement in
July 1986.61 It required France to convey to New Zealand ‘a formal and unqualified apology for the
attack, contrary to international law’, to pay compensation to New Zealand in the amount of US$7
million (New Zealand had demanded US$9 million and France had offered US$4 million), and to
discontinue opposing New Zealand imports into the European Community. New Zealand was required to
transfer the two agents to the French military authorities, who were to keep them isolated under
military discipline for a period of three years on the island of Hao in French Polynesia. They were to be
prohibited from leaving the island,‘for any reason, except with the mutual consent of the two
Governments’.
Finally, the ruling of the Secretary-General provided for an agreement of the two parties on a
mechanism of binding arbitration on further disputes concerning the implementation of the matter.
These terms to settle a most remarkable affair between two friendly states were originally carried out
by the governments, but at the end of 1987 and some months later in 1988 France unilaterally allowed
the two agents to return to France from the island of Hao, partly for alleged medical reasons. This led to
a decision of an arbitral tribunal on 30 April 1990 distinguishing between the two cases of repatriation of
the agents. In the first case, France was not found to be in violation of its obligations towards New
In the second case, France was held responsible for a breach by failing to make an effort in good faith
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February 1988.
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Zealand by repatriating the agent on 13 December 1987, but by failing to order his return to Hao by 12
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on 5 May 1988 to obtain the consent of New Zealand and by failing to return the agent on 5 and 6 May
1988. In a way following the spirit of the ancient Jewish King Solomon, the Tribunal also made the
recommendation that the two governments should establish a fund for the purpose of promoting
friendly relations between the citizens of both countries, into which the French government was asked
to pay US$2 million.
With regard to the private claims, in November 1985 France had already reached a settlement with the
family of the dead crewman, including a formal apology, compensation to the total amount of 2.3
million francs, and reimbursement of the insurers. In December 1985, France had also admitted legal
liability to Greenpeace and both sides agreed to negotiate on damages. Failing to reach agreement, they
referred the matter to a panel of three arbitrators on 10 July 1986. On 2 October 1987, the tribunal
awarded Greenpeace US$8,159,000 against France in damages (US$5 million for the loss of the ship and
US$1.2 million for aggravated damages, the rest for expenses, interest and legal fees).
One problem as regards NGOs is that most of them are based in the industrialized part of the world,
concentrating in a few home countries (predominantly in the UK, France, Belgium, Switzerland and the
United States) which implies that there is a certain geographical imbalance.
Although these home countries are democracies, guaranteeing freedom of association, NGOs are
sometimes used (and misused) by governments in their international dealings, inter alia, through their
necessary collaboration with inter-governmental organizations which are controlled by states.
The question has been raised whether it is really advisable that these non-territorial entities should seek
to obtain a formal international status on the universal level, which in effect might undermine their
strength in the future, or whether it is not better that they rather continue to rely on their
independence to act as a social bridge between the state-dominated international legal system and
individual human beings.
The constructive role of NGOs, especially in the field of human rights, in providing information, analysis
and public support, and active engagement in humanitarian relief operations and alleviating poverty in
developing countries, for instance, is now generally acknowledged. At least with regard to international
law-making in general, however, it is unlikely that NGOs will be included in the formal process in the
near future and, as noted by one recent author, this may also be undesirable, ‘as they are not
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pursuance of their specific interests’.
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democratically authorized to realize the common good, and often neglect the common good in the
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PRACTICE QUESTION
Are National Liberations Movements, transnational corporations such as ICR or Unilever, International
NGOS like Red Cross, Human rights watch international legal persons?
Discuss what legal criteria and entity must meet or satisfy in order for it to qualify as a state of
international law.
Is the Sahara Arab Republic (Western Sahara) a subject of international law?
“The rigid assumption that only sovereign states are the subjects of international law is giving place to
the idea that other entities notably certain international organizations like the United Nations itself as
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well as individuals are now subjects of international law for most practical purposes” Do you agree?
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STATES
States are the fundamental or primary subjects of the International Law this is because they are
international entities which besides controlling territory in a stable and permanent way exercise
the principle law making and executive functions proper of any legal order.
States are the backbone of the International community because they possess full legal capacity
the ability to be vested with rights and powers and to carry legal obligations under international
law.
Were states to disappear the present International legal order would either fall apart or change
radically
WHAT ARE STATES?
The definition of “a state” under international law is not clear because it is a quite often difficult
to decide whether a particular entity is a state or not.
Briefly a state is an institution which men establish among themselves for the purpose of
attaining certain objects the fundamental one is a system of order on the basis of which other
objects may be carried out.
Ian Brownlie says that a state is a type of legal person recognized by International Law although
the possession of legal personality is not a sufficient mark of statehood.
He says that the criteria of statehood are laid down by the law because if it were not so then
statehood would be subjective such that a state would be able to contract out of duties owed to
another state simply by refusing to categorize the oblige as a state.
Brownlie does not say what a state is he then proceeds to look at the Characteristics of
statehood.
Another author Greig says that a state for the general purpose of international law is a
territorial unit containing a
1. Stable Population
2. Under Authority of its own government
3. Recognized as being capable of entering into relation with other entities that have
Starke says no exact definition of a state is possible but as far as modern conditions are
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international personality.
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The starting point for the definition of statehood is Article 1 of the 1933 Montevideo
Convention of Rights and Duties of State, which enumerates what now are widely accepted as
characteristics of statehood in international law.
The Article provides that the state as a person of International law should possess the following
qualifications namely
i.
A permanent population
ii.
A defined territory
iii.
A government
iv.
Capacity to enter into relations with other state.
These enumeration is not exhaustive but merely a basis for further investigation because not all
the criteria are final
The criteria have been clarifies and developed by International law tribunals and jurists who
have identified further elements that must be included in the criteria of statehood.
1. PERMANENT POPULATION
A state cannot exist without a population the requirement of a permanent population refers to
a politically stable community there is no prescribed minimum of people making up the
population.
For instance
a) The Vatican State has an estimated resident of 800
b) Nauru has 20,000 people
c) Seychelles has 75,000 people
d) Maldives has 350,000 people
e) China has over 1.2 Billion people
f)
Kenya has over 40 million people
The criterion of population is not affected if the population is nomadic besides international law
does not require the population to be homogenous.
The criterion of a state community refers to a group of individuals living in a certain geographical
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area.
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2. DEFINED TERRITORY
A fixed territory constitutes a basic requirement for statehood.
The stable political community must be in control of a certain geographical area.
The criterion of territory is connected to the one of permanent population and constitutes the
physical basis for existence of a state.
There is no requirement that the frontiers of the state to be fully defined or undisputed either
at the time it comes into being or subsequently.
The state of Israel was admitted into the UN in 1948 although the final delimitation of its
boundary had not been settled.
What is important is the effective establishment of a political community i.e In order to say that
a state exists and can be recognized as such it is enough that its territory has sufficient
constituency even though its boundaries have not been accurately delimited.
International law does not also require any minimum size for a state and territory for that
matter e.g.
a) The State of Vatican occupies 0.444 Km (squared)=Less than 100 Hectares
b) Nauru has 8 square miles
c) The Principality of Monaco forming an enclave in French territory covers an area of 195
hectares
Besides International law does not require geographical unity of the territory.
The state may consist of territorial areas that are separated and distinct from each other what is
needed is unity under a common legal system.e.g
a) Kiribati is a small island separated by 300-1000 Km apart.
b) Hawaii is considered part of the US and
c)
Japan is a group of several Islands.
3. GOVERNMENT
A government or at least some governmental control is required for qualification of a state.
The existence of an effective and independent government with centralized and administrative
In certain cases however the presence of effective government alone is insufficient to support
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and legislative organs is generally the best evidence of stable political community.
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Once a government has been established the subsequent absence of governmental authority
does not affect the existing rights of the state to be considered a state.
This is because states have often survived periods of anarchy, civil war and hostile occupation.
However in order for a territory which has not developed into a state to be considered as a state
it must have a government of its own and not be subject of control of another state.
A puppet state is not a state in international law.
In order to ascertain the degree of governmental authority one has to consider in whose
interest and for what legal purpose the government is effective.
In other words the territory in question must be under an independent and sovereign
government and no other authority of international law.
It should not be subordinate to the authority or will of another except of international law.
The form of government and its legality or legitimacy are not decisive of criteria of a state that
belongs to the domestic affairs of a state.
4. CAPACITY TO ENTER INTO RELATION WITH OTHER STATES
Although the new entity may have a government capable of acting on its own behalf in order for
its claim to be a state to succeed.
The entity itself must be capable of entering into relations with other states.
The capacity of an entity has a relations with other states is derived from the control the
government exercise from another territory which in turn is based on actual independence of
that state.
The state must be independent of other state legal orders or any international legal agencies
and based on a title of International law.
International law identifies two elements evidencing the existence of independence
1. The entity exists separately within established boundaries this emphasizes the link
between territory, population, government and independence .All the four criteria must
be present for the purpose of statehood.
2. The entity is not subject to any other authority except international law. Accordingly if
relations and has a national legal system then there is a prima facie evidence of
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an entity has its own executive and other governmental organs conducts its foreign
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External control through economical or political blackmail directed to weaker members of
international community does not affect statehood.
5. LEGALITY OF ORIGIN
Some jurists argue and state practice in recent year’s show that an additional criterion should be
added to those enumerated by the Montevideo Convention namely The Legality of Origin of the
state in question.
A putative state which is created in violation of International Law which exists because such
violation cannot acquire the status and be recognized as a state.
A putative state will be an illegal entity if it was created by
i.
prohibition of aggression and of the acquisition of territory by force or
ii.
by the violation to self-determination or
iii.
by prohibition of racial discrimination or apartheid.
Article 2 (4) of the UN Charter prohibits the use of force and aggression has acquired the status
of Jus Cogens
Article 2 UN Charter
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfil in good faith the obligations assumed by them in accordance
with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any state, or in any
other manner inconsistent with the Purposes of the United Nations.
state against which the United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations
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accordance with the present Charter, and shall refrain from giving assistance to any
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5. All Members shall give the United Nations every assistance in any action it takes in
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act in accordance with these Principles so far as may be necessary for the maintenance
of international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to
intervene in matters which are essentially within the domestic jurisdiction of any state
or shall require the Members to submit such matters to settlement under the present
Charter; but this principle shall not prejudice the application of enforcement measures
under Chapter VII.
Consequently no entity created in breach of this rule can acquire the status of being recognized
by the international community.
This is illustrated by the case of
a) Manchukuo- A puppet state created by Japan following the invasion of China province
of Manchuria in 1931 .The League of Nations refused to recognize Manchukuo.
b) Modern example includes the refusal by the UN to recognize the so called Independent
States of Turkish Republic of Cyprus since it was created by the illegal invasion of
Cyprus in 1974.
When new entities are created in breach of the right of self-determination and the prohibition
of racial discrimination and apartheid the international community will refuse to recognize them
as states and there by deny them personality under International law even though the other
criteria of statehood is satisfied.
When Southern Rhodesia declared its independence in November 1965 the UN called upon its
members not to recognize the white minority racists government on the ground that the new
states was created on the breach of the Right to self determination.
With respect to South Africa the creation of Bantusta, Ciskei, Botaswana and Benda states
without the consent of the black population was condemned by the International community
as the creation of a puppet of the apartheid regime which did not acquire the status of states.
The following two points should be noted in relation to statehood and by way of conclusion
1. Units within a federal state may be allowed by the federal constitution some autonomy
that they are allowed to do so such units are regarded in International Law as having
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including the freedom to conduct there own foreign affairs and relation. To the extent
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Union Constitution. And Zanzibar under the current United Republic of Tanzania. Such
units are not thereby states but international persons sui generis.
2. Statehood entails certain rights and duties under International law a state has
a) Sovereignty over its territory and general authority offer its nationals
b) States as an International law person with capability to own, acquire and
transfer property to make contracts and enter into international agreements
and to become a member of International organizations and to persue and be
subject to international law remedies
c) Capacity to join other states in the making of international law either as
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customary international law or conventional law.
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LECTURE 8: 16th MARCH 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 6: RECOGNITION
INTRODUCTION
The international community is in a state of continuous flux because new states are created,
existing states disappear and territorial changes take place.
Moreover revolutions uprisings and coups d’états sweep aside existing governments and replace
them with existing regimes.
When these changes occur foreign states are faced with the choice of whether or not to
recognize such entities that claim competence and authority over those regimes.
This is because for the entity or new regime concerned it must be recognized by other states in
order to fully operate in the international plane.
The new entity or regime needs the assurance that it would be permitted to hold its place and
rank in the character of an independent legal organism in the society of state. E.g. When Kibaki
was sworn in the other presidents sent a congratulatory message to give assurance that he is
the head of state.
As a principle recognition is a mixture of politics, international law and municipal law. When
granting or withholding recognition, states are more influenced by political rather than legal
considerations.
Recognition is a discretionary function exercised unilaterally by the government of a state
acknowledging the existence of another state or government or belligerent community.
Malcolm Shaw says that recognition is a statement by an international legal person as to the
status in international law of another realm or alleged international legal person.
It is an acknowledgment of the international legal status of the entity in question.
With respect to a state recognition is the acknowledgment that the entity fulfills the criteria of
State Board. On the other hand recognition of a government is the acknowledgment that the
regime in question is in effective control of a state.
Although recognition is not a matter governed by law but by policy, the act of recognition
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produces legal consequences in International law as well as Municipal law (Discuss).
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ACTS OF RECOGNITION
The act of recognition is not a legal act but a [policy act as it is discretionary there is no legal
duty but there are legal criteria that must be fulfilled for the regime that wants to be
recognized.e.g What actions did Kenya take to manifest that it has recognized the state of
Southern Sudan?
There is no uniform type of acts of recognition because recognition is a matter of intention and
may be expressed or implied.
The act or recognition may be effected
i.
expressly by a formal announcement or
ii.
by a bilateral treaty or recognition or
iii.
in certain cases impliedly through any act indicating an intention to effect recognition.
A formal announcement may take the form of a public statement, a congratulatory message on
the attainment of independence or a simple diplomatic note delivered to the entity which is to
be recognized.
Recognition may be implied from the conduct of one state towards another.
However, recognition by implication must be unequivocal and clearly indicate that the
recognizing state has a clear and inescapable intention to do so.
State practice shows that certain situations may amount to recognition such as the conclusion of
bilateral treaties and the formal exchange of diplomatic envoys e.g. If Kenya concludes a
bilateral treaty with Southern Sudan then it impliedly recognizes southern Sudan as a state.
Recognition cannot be implied from certain other situations such as being parties to multilateral
treaties or attendance at international conferences at which the unrecognized entities
participate.
ILLUSTRATION
We have an international negotiating conference, to sign a multilateral treaty like the statute that
establishes the ICC, participating in that entity does not mean Kenya has recognized that entity. What is
the Distinction between bilateral and multilateral? Bilateral only happens where Kenya recognizes the
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state; in multilateral it does not mean Kenya recognizes the state.
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THE WESTERN SAHARA ISSUE
Saharawi democratic republic Western Sahara was a Spanish colony until 1975 Spain could not
manage the administration as there was a civil war in Spain. It abandoned Western Sahara. Morocco
and Mauritania moved in claiming the territory was historically part of their territory. The issue
ended up at the UN assembly and kept off the others. UN referred the matter to the ICC for an
advisory opinion. The ICC advised that the Morocco and Mauritania to keep off to allow the
Saharawi’s to decide. UN established a UN committee on a referendum on the future Western
Sahara. Morocco decided to export its citizens to WS frustrating efforts of UN Gen Assembly. The
OAU admitted the Saharawi to its membership, Morocco pulled out of OAU in protest.
An entity may also be recognized collectively. This may arise in two contexts
1. The first being in situations where recognition is accorded collectively by a group of
states e.g. by a peace treaty as illustrated by the 1919 Treaty of Versailles which
recognized new states emerging after the end of WW1.
2. When an entity is admitted as a new number of the United Nation Organization
Article 4 of the UN Charter sets out conditions and procedure for admission.
a) Article 4 (1) requires that a new member must be peace loving, must be ready to accept
the obligations deriving from the charter and must be able and willing to a carry out
those obligations.
b) Article 4 (2) the absolute masters of the admission procedure are the UN Security
Council and the UN General Assembly.
The Security Council will verify whether the conditions in Article 4 (1) are fulfilled by the
applying entity and at the recommendation of the UN Security Council and UN General
Assembly will adopt the final decision.
ILLUSTRATION
Attempt by Mahmoud Abass to get Palestine as an entity. Arab states do not recognize Israel as a state
the obligation.
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NB: ALSO WESTERN SAHARA IS NOT A MEMBER OF THE UN
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but they cannot treat Israel as a non state as it is against the UN charter and they will be in violation of
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Constitution of UNESCO allows membership to states and non states. It exists as an independent
ILP separate and distinct from the UN.
Article 4
1. Membership in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the Organization, are able
and willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a
decision of the General Assembly upon the recommendation of the Security Council.
RECOGNITION OF GOVERNMENTS
Recognition of governments is an indication of willingness to accord the government in question
all the international rights and privileges normally accorded to those governments that
recognizes.
Recognition of government implicitly means recognition of state because there cannot be
interstate relations without intergovernmental relations.
Recognition of governments is however different from that of states in that non recognition of
government does not mean non recognition of state e.g Kenya refused to recognize the military
regime in Mali and Tanzania never recognized the Idi Amin government in Uganda but never
doubted Ugandans state hood. Most states do not recognize governments but recognize states.
The granting or refusal of recognition of a government has nothing to do with the recognition of
the state itself.
If a foreign state refuses the recognition of a change in the form of government of an
old/existing state the later does not lose its status as an international person.
The state is perpetual and survives changes of its government.
Non recognition of government may mean either that
1. The government in power is not a government in terms of independence and
because it is undemocratic
3. The entity withholding recognition thinks that the government in power is illegal.
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2. The foreign state is unwilling to enter into diplomatic relations to that government
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effectiveness or
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Article 2 (4) makes state practice to recognize state that have been choosen by the people in
that country
POLITICS AND FUNCTIONS OF RECOGNITION
Whereas there is no right or duty under international law for an entity or government to be
recognized the political act or recognition produces legal consequences.
If an entity fulfills the criteria it cannot demand recognition from Kenya or any other state. If a
government is in power and ex authority it cannot demand recognition. It is an act of policy. The
moment Kenya decides we recognize a state it produces legal consequences.
Decision to recognize is a political decision.
The question that arises however is whether the decision to grant or withhold recognition is
based on political or legal factors.
From state practice it is apparent that the political act or recognition is based on legal factors.
1. In the first place recognition cannot be granted unless and until in the appropriate legal
indicia is met.
In the case of a state there must be
i.
Permanent population
ii.
Defined territory/borders and effective and independent government and
iii.
Capacity to enter into interstate relations.
The traditional indicia as regards government such as effectiveness with a possibility of
permanence and durability is vital so as to premature recognition particularly in the cases of
revolutionary regimes (e.g Biafra in Nigeria. Biafra had not met the legal criteria of state hood.).
See Tinoco Case (Great Britain vs Costa Rica) Arbitral Tribunal 18th October 1923 in RIAA
CASE
Tinoco government by the UK did not preclude the claim of the UK on behalf of its national.
In his opinion non-recognition was evidence perhaps strong evidence that the entity had not yet
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The sole arbitrator Chief Justice William Taft of the US held that the fact of non-recognition of the
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Tinoco Case (Great Britain vs Costa Rica) Arbitral Tribunal 18th October 1923 in RIAA
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attained the alleged status in international law but the ultimate test was a factual one based on
internationally accepted criteria. So if the unrecognized entity was effective it could still be the object of
International claim and was bound by the duties imposed by international law.
In 1917 the government of Costa Rica was overthrown by one Fredrico Tinoco who assumed power,
called an election and established a new constitution in June 1917.
In 1919 Tinoco retired and left the country, his government failed and fell in 1922,the restored Costa
Rican government passed a law invalidating all contracts between executive power and private persons
made with or without the approval of the legislative power during the Tinoco reign.
The Tinoco government had granted a concession to the Central Costa Rica Petroleum Company and
was indebted to the Royal Bank of Canada both British Companies .
Under the new law both these obligations were abrogated .Great Britain which had never recognized
the Tinoco government claimed on behalf of the corporation and the matter was referred to arbitration
The issue before the court was whether the Tinoco government was in effective control and did it have
power to enter into contracts ,Tinoco argued that Britain was stopped since it did not recognize the
Tinoco government.
The arbitrator in his award discussed the question of recognition in the light of objection of Costa Rica
that Great Britain by her failure to recognize the Tinoco government was stopped arguing that claims of
her subject depend upon the acts and contracts of the Tinoco government.
He decided that since the Tinoco government was in effective control of Costa Rica it was the valid
government irrespective of the fact that the UK together with other States had not recognized it.
Procedural History:
Arbitration of contract repudiation.
Overview:
Great Britain (P) claimed that the former government of Costa Rica (D), the Tinoco regime, had granted
oil concessions to a British company that had to be honored by the present regime. The Tinoco regime
had seized power in Costa Rica by coup. Great Britain (P) and the United States never recognized the
was the only government in existence at the time the contract was signed and its acts could not be
repudiated. Costa Rica (D) claimed that Great Britain (P) was estopped from enforcing the contract by its
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including an oil concession to a British company. Great Britain (P) claimed that the Tinoco government
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Tinoco regime. When the Tinoco regime fell, the restored government nullified all Tinoco contracts,
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nonrecognition of the Tinoco regime. The matter was sent for arbitration
Issue:
Does nonrecognition of a new government by other governments destroy the de facto status of the
government?
Rule:
-A government that establishes itself and maintains a peaceful de facto administration need not to
conform to previous constitution and nonrecognition of the govt. by other govt.’s does not destroy the
de facto status of the govt.
Analysis:
The arbitrator found there was no estoppel. The evidence of nonrecognition did not outweigh the
evidence of the de facto status of the Tinoco regime. Unrecognized governments thus may have the
power to form valid contracts.
Outcome:
No. A government that establishes itself and maintains a peaceful de facto administration need not
conform to a previous constitution and non-recognition of the government by other governments does
not destroy the de facto status of the government. Great Britain's (P) non-recognition of the Tinoco
regime did not dispute the de facto existence of that regime. There was no estoppel since the successor
government had not been led by British non-recognition to change its position.
SOMETHING YOU DIDN’T KNOW ABOUT COSTA RICA
In the entire world Costa Rica is the only state without a military since 1949 and has applied all the
resources in education and health. Life expectancy is about 80 and a 94 literacy rates. The Vatican has a
relations between the recognizing and the recognized state or government.
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2. Secondly recognition is based on legal considerations since it brings about formal legal
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military.
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It may give rise to the establishment of diplomatic relations or the conclusion of bilateral
treaties.
However, in extreme situations of strategic or political considerations recognition may be
granted or withheld on political grounds. For instance, the decision of the UN not to grant
recognition to he Ian Smith regime in Southern Rhodesia was political based on the fact that
the policy on that regime was repugnant for the purposes and principles of the UN.
There are two basic functions of recognition.
1. Recognition may be employed for the purpose of the existence of a new subject of
international law or its organs.
2. Recognition confers on the recognized entity the right to have its territorial claims
recognized, changes in the title of its claim recognized and the grant or withdrawal of
nationality respected by other states.
Where particular entity is a member of international organization it will be bound by the
recognition granted by that organization and although a non recognizing state are not under
legal duty of recognition they put themselves at risk legally if they ignore the basic obligations of
state relations. E.g. Arab states and Israel
There are numerous legal and political grounds for non recognition. However, three are
important :
1. The entity to be recognized is not independent in the sense that it is still subject to
another state.
2. The particular entity is unstable and without the prospect of permanence. However the
instability of an entity is in the light of the drive for self determination and
independence, less of an objection to recognition than it used to be. For instance there
was a general recognition and admission to the UN of the new state of Congo Kinsasha
DRC immediately upon its becoming independent of Belgium although civil strife and
conflict and political division were at that time so great that only the UN intervention
enabled the state to survive.
There are two doctrines associated with this.
1. TOBAR DOCTRINE advanced by Dr. Tobar of Ecuador in 1903 he stated that
governments that have risen to power through extra -constitutional means should not
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3. Is that the entity was not established according to orderly constitution change.
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be recognized. This doctrine was embodied in a treaty in the same year between the
five Central American Republics.
2. STIMSON DOCTRINE advanced by H.L Stimson the US Secretary of State in the wake of
the Japanese invasion of the Chinese province of Manchuria and the establishment of
Manchukuo in 1932.He stated that recognition should not be accorded to any situation
brought about the acquisition of a territory in general or the establishment of a new
state or the extinction of an existing state by a war of aggression or use of force. Pacific
settlement of disputes this has been embodied by Article 2 (4) of the UN Charter.
THE LEGAL SIGNIFICANCE OF RECOGNITION
The legal significance of recognition is mainly influenced by two theories
a) The constitutive
b) Declaratory
1. THE CONSTITUTIVE THEORY
According to the constitutive theory, recognition has a constitutive effect in that a state is
and becomes an international legal person through recognition only and exclusive.
In other words international personality is held to be conferred only through recognition of
the entity in question.
An entity may possess all the formal attributes and qualifications of state hood not unless
the recognition is accorded to it, would not acquire international personality.
This theory is related to an extreme positivists approach because if consent is posited as the
major source of international law then it will be quite simple to assert that international
personality can be obtained only through the consent of existing legal persons by the
performance of an act constituting recognition.
Anzilotti and Kelsen are the main protagonists in this theory.
Logically however this premise is not altogether correct for a number of reasons.
1. New states are conferred with the rights and bear obligations under international law
independent of the will of other states through recognition.
Accordingly the legal status of an entity cannot be held to be independent according to
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the performance of such a political act.
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2. State practice shows that recognition is primarily a political act on the part of states.
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3. State practice also shows that it might not be possible to ignore completely a non
recognized entity (e.g Israel and her Arab neighbors) or for instance while the US did not
recognize communist China for a long time it never the less had to enter negotiations in
several occasions and hence recognized its existence.
4. It is not clear how many members of the international community must recognize the
entity for it to qualify as a state.
5. Finally the constitutive theory fails to address the issue on whether the existence of the
entity as a state will be relative to only those states which extend recognition. An entity
cannot be a state vis a vis those states that extend recognition to it and the same time
be a non state vis a vis those states that do not recognize it.
2. THE DECLARATORY THEORY
The second theory holds that it is a declaratory act at most formal admission or
acknowledgement of existing facts.
The act of recognition is not decisive /precisive of the new entities claimed to state hood
because that status is conferred by international law. The status of statehood does not depend
on recognition.
The international legal personality of a state does not depend on its recognition as such by other
states but for the operation of the law.
It is conferred by rules of international law and whether or not a state is actually recognized by
another state it is still entitled to the rights and is subject to the general duties of the
international legal order.
This theory has been endorsed on many occasions by international conventions, arbitral
decisions and even the international court of justice.
However there exist a qualification in this theory namely since states are free to deny or grant
access to their courts recognition is constitutive with respect to those domestic courts.(If Kenya
does not recognize a particular entity as a state the court of Kenya will tell an official that they
do not recognize them and that they cannot grant access to the courts.)
All in all the declaratory theory is favorable for the following reasons.
1. The constitutive theory amounts to states creating and demolishing entities and
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derogates from the principle of sovereign equality of states. Besides the legal
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competence of states is established by international law and not by the political
discretion which determines the grant or withholding of recognition.
2. It is not clear how many recognizing states will be enough in order to create a new state
under the constitutive theory.
3. Besides it is not clear whether the new states entity will become a state vis a vis
recognizing states and not a state vis a vis non recognizing states.
4. Judicial decisions have endorsed the declaratory theory. For instance, in the case of the
Re Al-Fin Corporations Patent The English courts reaffirmed the fact that recognition
was not constitutive but merely declaratory
CASE
Re Al-Fin Corporations Patent (1970)
Section 24 (1) of the 1949 English Patents Act allowed a patentee an extension of his patent if he had
suffered loss ‘by reason hostilities between his majesty on any foreign state.’ In this case the applicants
sought an extension under section 24 (1) in respect of loss suffered during the Korean War between
1950 -1953.
The Comptroller General rejected the application partly on the ground that the Korean War did not
come within section 24 (1) because North Korea not having been recognized by the UK was not a
‘foreign state.”
The applicants sought a ruling of the HC on this Justice Graham j said, ‘…I have no hesitation in holding
that the phrase ‘any foreign states,’ although of course it includes a foreign state which has been given
foreign office recognition, is not limited there to. It must at any rate include a sufficiently defined area of
territory over which a foreign government has effective control. Whether or not a state in question
satisfies these conditions is a matter primarily of fact in each case…that at the relevant time North Korea
as a defined territory over which a government has effective control and that his late majesty was
engaged in hostilities in this state albeit his troops were under the command and formed part of the un
forces fighting in the area. I hold therefore that North Korea was a foreign state within the meaning of
section 24 (1) and that the applicants are entitled to proceed with the application for extension on that
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basis.’
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5. State practice supports the declaratory theory. States enter into official relations with
recognized entities and conclude international agreements with them. Such practice is
founded on the beneath that non recognized entities have international personality.
LEGAL CONSEQUENCES OF RECOGNITION
1. IN MUNICIPAL LAW
Recognition is essentially a matter of intention and might be accomplished through several
modes.
The act or recognition must however give a clear invitation of an intention to
a) Treat the new state as such
b) Accept the new government as having authority to represent the state it purports to govern
c) Recognize in the case of belligerents that they are entitled to exercise belligerent rights.
A number of legal consequences flow from recognition within municipal law.
a) Recognition has the effect of giving the recognized state or government access to the courts of
the recognizing state.
In other words, an unrecognized state or government cannot sue or be sued in the state of the
non recognizing state.
Neither can its laws be recognized for the purposes of the conflicts of law. We will allow the
Ugandan government to maintain a civil suit in Kenya.
This is illustrated by the case of Luther vs. Sagor 1921 Vol 1 KB 456
CASE
Luther vs. Sagor 1921 Vol 1 KB 456
In June 1918 the Russian Socialist Federal Soviet Republic passed a decree declaring all mechanical saw
mills and good working establishments belonging to private or limited companies to be nationalists. In
1919, in pursuance of the decree the plaintiff’s mill together with its stocks of wood was ceased on
behalf of the republic. In August 1920 the representative of the Russian Commercial Delegation in
timber was their property and injunction restraining the defendants from selling pledging or in any way
dealing with it. The defendants argued that the decree of June 1918 being the act of a sovereign
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some which have been ceased from the plaintiffs. The plaintiff sought inter alia a declaration that the
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London contracted with the defendants for the sale and delivery of a quantity of timber which included
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government was valid to deprive the plaintiffs of their title to the timber and not been impugned not
challenged. The KB division decided in favour of the plaintiff.
However on appeal on the basis of certificates issued by the UK foreign office stating that the soviet
government was recognized by the UK as the de facto government of Russia before the confiscation.
The court of appeal confirmed the defendant’s title with the wood.
Lord justice Bankes stated, “the courts of these country will not inquire into the validity of a foreign
government which has been recognized by the government of this country…the government of this
country having recognized the soviet government as the government really in possession of the powers
of sovereignty in Russia, the act of that government must be treated by the courts of this country with
all the respect due to the acts of a duly recognized foreign sovereign state”.
The case of Luther v. Sagor suggested that in general the legal consequences of a de facto recognition
would be the same as a de jure one.
Similarly in the case of The Republic of Somalia v Wood house Drake and Carey Suisse (1992) 3
WLR 734
CASE
The Republic of Somalia vs. Wood house Drake and Carey Suisse (1992) 3 WLR 734
The QB division of the UK Supreme Court refused to allow the representative of the interim government
of Somalia to bring a claim before it on the ground that it was not a recognized government on
international law. In January 1991 the incumbent government of Somalia purchased a cargo of rice for
delivery at the port of Mogadishu. In the period between the purchase and delivery conflict broke up in
the country the government was overthrown and a provisional government established.
In the
meantime the cargo of rice could not be delivered at the port of destination due to the fighting. Since
the cargo could not be delivered the provision of government raised an action for recovery of the price
of the undelivered cargo. The ship onus issued a summons against the republic of Somalia. The court
One of the issues the court had to consider was whether the provisional government had the locus
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standii to bring the action. The court held that on the evidence the provisional government of Somalia
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ordered the original bills of lading to be lodged with the court pending the settlements of the dispute.
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had not been recognized and hence had no lawful standing in the English court. Its claim to the price of
the consignment was rejected.
Transporters Aeros de Angola vs. Ronair 21 (5) ILM 1081 (1982)
CASE
Transporters Aeros de Angola vs. Ronair 21 (5) ILM 1081 (1982)
It was held that in the particular circumstances where the US State Department had clearly stated that
allowing the plaintiff (a corporation owned by the un-recognised government of Angola) access to the
Court would be consistent with the foreign policy interests of the United States, the jurisdictional bar
placed upon the Court would be deemed to have been lifted.
b) A recognized state of government enjoys sovereign immunity from suits in the court of
recognized state and cannot be sued without its consent.
The plea of immunity may be raised by an authority recognized as being in de facto control even
if the proceedings are brought by the de jure sovereign.
See The Arantzazu Mendi Case (1939 ) A.C 256 HL
CASE
The Arantzazu Mendi Case (1939 ) A.C 256 HL
This problem of the relationship between a de facto government and a de jure government as far as
English courts were concerned, manifested itself again during the Spanish Civil War.
The case of the Arantzazu Mendi concerned a private steamship registered in Bilbao in the Basque
province of Spain. In June 1937, following the capture of that region by the forces of General Franco, the
opposing Republican government issued a decree requisitioning all ships registered in Bilbao.
government issued a writ to obtain possession of the ship. The owners opposed this while accepting the
Nationalists' requisition order.It was accepted rule of international law that a recognised state cannot be
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Bilbao vessels. In the meantime, the Arantzaztl Mendi itself was in London when the Republican
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Nine months later the Nationalist government of Franco also passed a decree taking control over all
PUBLIC INTERNATIONAL LAW-GPR 301
sued or otherwise brought before the courts of another state.
Accordingly, the Nationalists argued that since their authority had been recognised de facto by the UK
government over the areas they actually controlled, their decree was valid and could not be challenged
in the English courts. Therefore, the action by the Republican government must be dismissed.
The case came before the House of Lords, where it was decided that the Nationalist government, as the
de facto authority of much of Spain including the region of Bilbao, was entitled to be regarded as a
sovereign state and was able to benefit from the normal immunities which follow there from. Thus, the
action by the Republican government failed.
The House of Lords pointed out that it did not matter that the territory over which the de facto
authority was exercising sovereign powers was from time to time increased or diminished."' This case
marks the high-point in the attribution of characteristics to a de facto authority and can be criticised for
its over-generous assessment of the status of such an entity.
c) The legislative and administrative acts of the recognized states or governments will be given
effect to the recognizing states.
See the Luther vs Sagor Case
The leading case in English law on the issue of effects of recognition of an entity within the domestic
sphere is Luther v. Sagor." This concerned the operations and produce of a timber factory in Russia
owned by the plaintiffs, which had been nationalised in 1919 by the Soviet government.
In 1920 the defendant company purchased a quantity of wood from the USSR and this was claimed
in England by the plaintiffs as their property since it had come from what had been their factory. It
was argued by them that the 1919 Soviet decree should be ignored before the English courts since
the United Kingdom had not recognised the Soviet government.The lower court agreed with this
the Court of Appeal of this in writing. The result was that the higher court was bound to take note of
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In the meantime the UK recognised the Soviet government de facto and the Foreign Office informed
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contention and the matter then came to the Court of Appeal.
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the Soviet decree and accordingly the plaintiffs lost their case, since a court must give effect to the
legislation of a recognised state or government. The Court also held that the fact that the Soviet
government was recognized de facto and not de jure did not affect the issue. Another interesting
point is that since the Foreign Office certificate included a statement that the former Provisional
Government of Russia recognised by the UK had been dispersed during December 1917, the Court
inferred the commencement of the Soviet g- overnment from that date.
The essence of the matter was that the Soviet government was now accepted as the sovereign
government of the USSR as from December 1917.
And since recognition once given is retroactive and relates back to the date that the authority of the
government was accepted as being established, and not the date on which recognition is granted,
the Soviet decree of 1919 was deemed to be a legitimate act of a recognised government. This was
so even though at that date the Soviet government was not recognized by the United Kingdom.
The purpose of the retroactivity provision to avoid possible influence in the internal affairs of the
entity recognised, since otherwise legislation made prior to recognition might be rejected. However,
this will depend always upon the terms of the executive certificate by which the state informs its
courts of the recognition. Should the Foreign Office insist that the state or government in question is
to be recognised as a sovereign state or government as of the date of the action, the courts would
be bound by this.
As is the case with legislation, contracts made by an unrecognized government will not be enforced
in English courts. Without the required action by the political authorities, an unrecognised entity
does not exist as a legal person before the municipal courts. The case of Luther v. Sagor suggested
that in general the legal consequences of a de facto recognition would be the same as a de jure one.
d) Recognition once granted is retroactive.
It is backdated to the establishment of the authority in question and does not relate to
the time in which it is accorded.
For instance in the Luther vs. Sagor Case the British recognition of the Soviet
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soviet government as of that date going forward had to be recognized as valid.
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government was backdated to 1917 and all the legislative and administrative acts of the
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2.
IN INTERNATIONAL LAW
An important legal consequence flowing from the recognition of an entity as a state or
government of another state is the Doctrine of ‘Act of State’.
It means that the acts of a recognized state and or government are not justiciable by the court
of the recognizing state.
This flows from the international law concept of the sovereign equality of states.
Every sovereign state is bound to respect the independence of every other sovereign state and
the courts of one state will not sit in judgment on the acts of the government of another state
done within its own territory.
In other words the Doctrine of Act of States precludes the courts of one state from enquiring
into the validity of the public act of a recognized foreign sovereign power within its own
territory for example Kenyan Supreme Court cannot sit or review on judgments of the court of
Uganda.
This is illustrated in the case of Underhill vs Hernandez.
CASE
Underhill vs Hernandez.
In August 1892 an army party under the defendants command took power in a Bolivar Venezuela.
During the engagement, all of the local officials left and all the vacant positions were filled by the
defendants who from that date and during the period of the transactions complained of was the civil
and military chief of the city and district.
In October, the party in revolt had achieved success generally and on October 23 1892 the government
then in control of the territory was formally recognized as the legitimate government of Venezuela by
the US. The plaintiff was a US citizen who had constructed a water work system for the City of Bolivar
under a contract with the government and was engaged in supplying the place in water.
Sometime after the entry of Hernandez, he applied to him as the office in command for a passport to
leave the city. The defendant refused his request, it was not until October 18th when a passport was
given and Underhill left the country. When he got to the US he filed this action to recover damages for
commander representing the authority of the revolutionary party as a government, which afterwards
succeeded and was recognized by the US…the acts of the defendant were the acts of the government of
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The US supreme court dismissed the action holding; ‘the acts complained of were the acts of a military
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the detention caused by the refusal to grant the passport.
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Venezuela, and as such are not properly subject of adjudication in the courts of another
government…every sovereign state is bound to respect the independence of every other sovereign
state, and the courts of one country will not sit in judgment on the act of the government of another
than within its own territory. Redress of grievance by reason of such acts must be obtained through the
means open to the avail of by sovereign powers as between themselves.’
ILLUSTRATION
Kenyan who has an interest in Uganda…and one has suffered redress. One can only do so in the High
Court of Uganda. One cannot leave Uganda and file a claim with the High Court of Kenya. When one
lives to Uganda and comes to Kenya one can appeal in exercise of the right of diplomatic relations to
expound this to the ICJ so that it becomes a state to state claim.
Besides, diplomatic relations are established with recognized states and governments. Although
the establishment of diplomatic relations is one of the manifestations of recognition it is not a
necessary consequence thereof because an entity can be recognize as a state even in the
absence of diplomatic relations of a recognized state.
However by acknowledging the full status of hither to in determinate communities the
recognizing states make possible the regularizing of relations between them on the basis of the
international law.
PRACTICE QUESTION
In July 1991 General Mwanamapinduzi assumed power in the Democratic Republic of Upendo after a
bloodless coup d’état. He suspended the Constitution and dissolved the Parliament of the Democratic
Republic of Upendo.In their places he established the Supreme Military Council of Upendo which
ruled by decrees.
Pursuant to a new policy on foreign investments, aimed at the alleviation of poverty General
Mwanamapinduzi promulgated a decree under which foreign individuals and companies investing a
besides other economic and fiscal incentives. Pursuant to this decree, several foreign companies
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including Halfan International Trading Company Limited and Hatego Technology Inc from Kenya
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minimum of USD 100,000 in any project or industry would be entitled to full repatriation of profits
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signed concessions with General Mwanapinduzi’s administration under which they were guaranteed
several economic rights and privileges for the next twenty years.
In October 2000 General Mwanapinduzi was assassinated by a group lead by Rear Admiral
Mageuzi.He proclaimed himself the new Head of State restored the old Constitution renamed the
Country Socialist Republic of Upendo and declared the pursuit of African socialism as the official state
policy. Rear Admiral Mageuzi’s Military Council subsequently issued decree annulling all the contracts
concluded by the General Mwanapinduzi’s administration and confiscated all foreign owned assets
.The decree provided no compensation ,accusing the foreign investors of exploitation of the country’s
natural wealth and resources.
In exercise of the right of diplomatic protection of the nationals abroad, Kenya has filed suit against
the Socialist Republic of Upendo with the International Court of Justice at the Hague alleging
Upendo’s breach of its international obligations to the detriment of Halfan International Trading
Company and Hatego Technology Inc.
The Socialist Peoples Republic of Upendo has raised preliminary objection to the suit by Kenya on the
grounds inter alia
i.
The ICJ has no jurisdiction since the Socialist Peoples Republic of Upendo is not a party to the
Statute of the Court.
ii.
Kenya is stopped from pursuing the claim on behalf of its nationals because of lack of
recognition either defacto or de jure of the General Mwanapinduzi government.
iii.
The Kenyan nationals were not denied any justice under the laws of the Socialist Peoples
Republic and as a consequence the Kenyan claim is ill-founded
iv.
The confiscation decree by the Revolutionary Council was an Act of State by the Socialist
Peoples Republic in exercise of its full and absolute territorial jurisdiction
You have been retained by the Kenyan Government as the lead agent to prepare her case. Prepare an
articulate and well supported response to the preliminary objection to Kenya’s Suit by the Socialist
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Peoples Republic of Upendo
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LECTURE 9: 20th MARCH 2014- THURSDAY 5.30-8.30 PM (LECTURE HALL B2)
TOPIC 7: TREATY MAKING
Introduction
TREATY MAKING SCENARIOS
a) If the international community wishes to enact a fundamental, organic, constitutional law ...
it employs the treaty.
b) If two states wish to put on record their adherence to the principle of the twelve mile limit
of the territorial sea ... they use a treaty. If, further, they wish to enter into a bargain that
derogates from that principle, again they use a treat.
c) If for example Denmark wishes to sell to the United States of America her West Indian
possessions they do so by treat.
d) If for example Kenya wishes to buy natural gas from Tanzania, in order to boost its energy
sector, they will do so by treaty.
e) And if the international community desires to create an international organization, such as
the International Labour Organization (ILO), which resembles the corporation of private law,
it is done by treaty.
The above excerpt illustrates the functions and relevance of treaties in inter-state relations.
Many aspects of international relations and transactions are based on agreements between
parties that regulate such relations and/or transactions.
Such agreements create rights and duties under international law for the parties thereto,
whatever the field of interaction.
Such international agreements are commonly called TREATIES, although they may also be
termed conventions, pacts, protocols, charters, accords, or exchange of notes.
What is important, however, is the manifest intent of the parties to be bound by their
agreement and, hence, the obligatory character of the terms thereof, and not its nominal
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designation, that determines whether a binding rule of international law has been created.
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WHAT IS A TREATY?
What, then, is a treaty?
Article 2 (1) (a) of the 1969 Vienna Convention on the Law of Treaties defines a treaty as “an
international agreement concluded between States in written form and governed by
international law, whether embodied in a single instrument or in two or more related
instruments and whether its particular designation."
i)
Note the key elements of the definition, namely:''an international agreement" - To be a treaty an agreement has to have an international
character; it must be an agreement between international law-subjects. Hence, an
agreement between a state and a TNC is not a treaty:
ii)
"concluded between States" - The 1969 Vienna Convention on the Law of Treaties applies
to agreements concluded between States. Agreements between States and international
organizations or among international organizations, inter se, are governed by the 1986
Vienna Convention on the Law of Treaties between States and International Organizations
or Between International Organizations. Agreements between States and private
individuals or corporations are not governed by international law, but by the law of
contracts;
iii)
"in written form" - The Convention does not apply to oral agreements. So, while states may
undertake binding international agreements without concluding a written instrument, such
agreements may be governed by general principles of international law and not the
Convention/treaty;
iv)
"governed by international law" - This phrase embraces the element of an intention to
create obligations under international law. If there is no such intention, the instrument will
not be a treaty. Intention must be gathered from the terms of the instrument itself and the
circumstances of its conclusion, and not from what the parties subsequently say was their
intention;
v)
"whether embodied in a single instrument or in two or more related instruments" - This
increasingly important role. An exchange of notes usually consists of an initiating note and a
reply. Cf. 1976 Kenya/Tanzania Maritime Delimitation Agreement;
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joined by treaties drawn in less formal ways, such as Exchange Of Notes. These play an
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phrase recognizes that the classic form of a treaty is a single instrument - has often been
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vi)
"whatever its particular designation'' - Most treaties are designated in unsystematic ways.
In most cases, it is more a matter of practice of international organizations or groups of
states, or political preference, which determines how a treaty is named. However, in itself
the name does not determine the status of the instrument; what is decisive is whether the
negotiating states intend the instrument to be binding in international law. Although it is
reasonable to assume that an instrument called a treaty, agreement or convention is a
treaty, one should nevertheless examine the text to make sure.
Related Instruments
a) MoU - One must be extremely careful in assessing that the status of an instrument
called MoU, since some treaties have been referred to as MoUs. Only by studying
carefully all the terms of an MoU can one determine its status. The general rule is that
since an instrument called MoU may be a treaty or an MoU, its status will be clear by a
specific provision, such as that it shall be legally binding on the parties.
b) Exchange of Notes - These pose the same problem as the name Memorandum of
Understanding since they may constitute either a treaty or an MoU. If the exchange is
intended to be a treaty, it is customary to provide expressly that it shall constitute an
agreement between the governments. If intended to be an MoU, it is usual to specify
that the exchange records the understanding of the two governments.
c) Protocol - Although some stand - alone treaties have been called Protocols, in
contemporary state practice, that name is generally used for supplementary treaties or
amending treaties. It is also used for other quite different purposes, such as for
documents which are annexed to a treaty and are an integral part thereof.
d) Optional Protocol - This name is used for a treaty which is closely associated with, and
usually adopted at the same time as, a treaty. The term "optional" is used to indicate
that a party to the main treaty does not have to become a party to the Protocol. The
most common Optional Protocols are on settlement of disputes under the main treaty.
e) Charter, compact, covenant or even declaration – for instance, the 1984 China – UK
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by both parties; the title was chosen for political reasons.
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Joint Declaration on the Future of Hong Kong is a treaty registered as such with the UN
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Types of Treaties
Depending on the subject, the treaty may be either bilateral or multilateral.
It is bilateral when it is between two states and multilateral when it is between three or more
states.
There are, however, bilateral treaties where two or more states form one party, and another
state or states the other party.
Most bilateral treaties are much like contracts, creating legal obligations that are relatively
narrow in scope and strictly limited to the parties involved in the negotiations.
Some multilateral treaties are considered to be "law-making" treaties in that they create
general norms for future conduct (create obligations valid erga omnes - for the whole world).
Almost like international legislation, these "law-making" treaties are often more broadly
applicable and are open to all States, including States that did not participate in their
negotiations.
In some cases, these treaties may codify and develop customary law. The 1969 Vienna
Convention on the Law of Treaties is generally regarded as a partial codification of customary
international law governing international agreements between States. Similarly, the 1982
United Nations Convention of the Law Of the Sea (UNCLOS) both codified existing customary
international law and created new concepts and principles regarding the utilization of ocean
space.
Performance of Treaties
The fundamental principle of treaty law is pacta sunt servanda, which stipulates that every
treaty in force is binding upon the parties to it and must be performed by them in good faith.
The obligation of good faith is invariable, underlying the observance of treaties by all parties to
them.
A party does not enter into any agreement or understanding with another party unless there is
an intention to carry it out to the letter and in the spirit.
Without the existence of an underlying principle the promises will be kept, instate relations
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would be impossible to maintain.
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The principle of pacta sunt servanda, which underwrites the integrity of treaties as a whole,
presupposes that the pact should be in force, that is, valid according to the ordinary rules
governing the conclusion of a treaty.
This principle is provided for under Article 26 of the VCLT which provides that every treaty in
force is binding upon the parties to it and must be performed in good faith.
It is followed in Article 27 by its corollary, that is, a party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.
PART III.
OBSERVANCE, APPLICATION AND INTERPRETATION OF TREATIES
SECTION 1. OBSERVANCE OF TREATIES
Article 26
“Pacta sunt servanda”
Every treaty in force is binding upon the parties to it and must be performed by them in good faith.
Article 27
Internal law and observance of treaties
A party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.
This rule is without prejudice to article 46.
"Limit on Sovereignty"
Whereas States have the full capacity and sovereign rights to conclude agreements on the
diverse subjects of their relations, agreements concluded in violation of a norm of jus cogens
and the provisions of the UN Charter will be void.
Under Article 53, a treaty is void if, at the time of its conclusion, it conflicts with a pre-emptory
norm of general international law.
accepted and recognized by the international community as a whole as a norm from which no
derogation is permitted and which can be modified only by a subsequent norm of general
international law having the same character.
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For the purposes of the Convention, a peremptory norm of general international law is a norm
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Even if part of a treaty conflicts with an existing jus cogens, the whole of the treaty, and not
just the offending part, will be void.
Article 53 must be read with Article 64 which provides that if a new peremptory norm of
international law emerges, any existing treaty which is in conflict with that norm becomes
void and terminates.
Since this provision is not retrospective, the treaty is invalid only from the time the new norm is
established.
Article 53
Treaties conflicting with a peremptory norm of general international law (“jus cogens”)
A treaty is void if, at the time of its conclusion, it conflicts with a peremptory norm of general
international law. For the purposes of the present Convention, a peremptory norm of general
international law is a norm accepted and recognized by the international community of States as a
whole as a norm from which no derogation is permitted and which can be modified only by a
subsequent norm of general international law having the same character.
Article 64
Emergence of a new peremptory norm of general international law (“jus cogens”)
If a new peremptory norm of general international law emerges, any existing treaty which is in conflict
with that norm becomes void and terminates.
Treaty Making Process
Four basic steps are inherent in the conclusion of any international agreement, that is,
i. Identification of needs and goals,
ii. Negotiation,
iii. Adoption and signature, and
iv. Ratification.
Before an international agreement can be concluded, certain preliminary steps must be taken.
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1. Identification of Needs and Goals
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First, the need for action must be discovered. For instance, in the field of environment, there
must be data that demonstrates the- adverse impact of a particular substance on the
environment.
This is important for two, reasons.
a) First, many important environmental problems have gone unaddressed for many years
before sufficient data was accumulated to convince the international community to
address them.
b) Second, because there is neither a prescribed process for identifying treaty needs, nor
any group of actors vested with primary responsibility for doing so, need identification
has proven an important strategy for non-State actors to influence the international
environmental law-making process.
2. Negotiations
In the case of a bilateral treaty, a State may initiate the treaty-making process simply by inviting
another State to negotiate on a particular issue.
Negotiations may then proceed, and a binding agreement be concluded, through a simple
exchange of diplomatic correspondence: face to face negotiations between the parties may not
be required.
Although there is no prescribed process for creating a multilateral treaty, recent State practice
has produced a somewhat standardized negotiating procedure.
Negotiations may be initiated by individual States; sometimes a State may recommend that an
international organization such as the UNGA or the ECOSOC establish a committee or convene
an international conference to consider a particular issue.
The host organization will then organize preparatory committees, working groups of technical
and legal experts, scientific symposia and preliminary conferences.
The organizing body may invite and accept comments from NGOs, scientific unions and other
private groups.
During these informal discussions, information is disseminated, the preliminary positions of
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interested States are established, the parameters of a possible agreement are narrowed, and
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Depending on the subject, this process of informal exchange may take a considerable period of
time before a conference of plenipotentiaries (representatives with authority to approve an
international agreement on behalf of their respective governments) is convened.
In the interim, the host government or organization, or some other qualified international body
such as the International Law Commission (ILC), will develop a draft convention to serve as the
basis for discussions at the plenary conference.
Generally, draft conventions are prepared with significant participation by the interested
parties, and many disagreements among States are likely to be ironed out before the final
conference convenes.
At the plenipotentiary conference, delegates will seek to resolve their remaining disputes, and
produce a final, authoritative version of the treaty, an authentic text.
The conclusion and subsequent validity of treaties depend on various conditions.
i.
The party to the treaty must have the capacity
ii.
Its representative must have the competence to express its consent to be bound by the
treaty, and
iii.
The treaty itself must be legal and conform to the requirements as to form.
Under Article 6 of the Convention, every Sate possesses capacity to conclude treaties. What is a
"state?" A sovereign independent state as a subject of international law.
PART II.
CONCLUSION AND ENTRY INTO FORCE OF TREATIES
SECTION 1. CONCLUSION OF TREATIES
Article 6
Capacity of States to conclude treaties
Every State possesses capacity to conclude treaties.
Under Article 7, by virtue of their functions, the following are considered as representing their
State and, hence, competent to express the consent of their State to be bound by a treaty':
a) Heads of State, heads of government and ministers for foreign affairs, for the purpose of
State and the State to which they are accredited:
c) Representatives accredited by States to an international conference or to an international
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b) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their
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performing all acts relating to the conclusion of a treaty;
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organization or one of its organs, for the purpose of adopting the text of a treaty in that
conference, organization or organ.
Other persons must, however, produce appropriate "full powers" before being accepted as
competent to represent their States for purposes of negotiating, adopting or authenticating the
text of a treaty and for expressing the consent of the State to be bound by the treaty.
Article 7
Full powers
1. A person is considered as representing a State for the purpose of adopting or authenticating the text
of a treaty or for the purpose of expressing the consent of the State to be bound by a treaty if:
a) he produces appropriate full powers; or
b) it appears from the practice of the States concerned or from other circumstances that their
intention was to consider that person as representing the State for such purposes and to
dispense with full powers.
2. In virtue of their functions and without having to produce full powers, the following are considered as
representing their State:
a) Heads of State, Heads of Government and Ministers for Foreign Affairs, for the purpose of
performing all acts relating to the conclusion of a treaty;
b) heads of diplomatic missions, for the purpose of adopting the text of a treaty between the
accrediting State and the State to which they are accredited;
c) representatives accredited by States to an international conference or to an international
organization or one of its organs, for the purpose of adopting the text of a treaty in that
conference, organization or organ.
Article 2(1) (c) of the Convention defines "full powers." Unless withdrawn, full powers remain
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Article 2
Use of terms
1. For the purposes of the present Convention:
a) “treaty” means an international agreement concluded between States in written form and
governed by international law, whether embodied in a single instrument or in two or more
related instruments and whatever its particular designation;
b) “ratification”, “acceptance”, “approval” and “accession” mean in each case the international
act so named whereby a State establishes on the international plane its consent to be bound by
a treaty;
c) “full powers” means a document emanating from the competent authority of a State
designating a person or persons to represent the State for negotiating, adopting or
authenticating the text of a treaty, for expressing the consent of the State to be bound by a
treaty, or for accomplishing any other act with respect to a treaty;
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valid so long as there is an outstanding act covered by them.
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Under Article 8, an act relating to the conclusion of a treaty which is performed by a person not
competent under Article 7 is without legal effect unless it is confirmed by the State involved
afterwards. For instance, ratification of the treaty will constitute confirmation, as will the
conduct by the state which evidences the acceptance of it, such as publication or its
implementation.
Article 8
Subsequent confirmation of an act performed without authorization
An act relating to the conclusion of a treaty performed by a person who cannot be considered under
article 7 as authorized to represent a State for that purpose is without legal effect unless afterwards
confirmed by that State.
The validity of the treaty will be governed by the rules of international law. This is because
international law is concerned only with the external manifestations of the expression of a
State's consent to be bound, and the act of a competent agent will bind this State even if he has
not complied with a prescription of internal law.
Accordingly, under Article 46, a State may not invoke the fact that its consent to be bound has
been expressed in violation of a provision of its internal law unless that violation was manifest
and concerned a rule of its internal law of fundamental importance.
SECTION 2. INVALIDITY OF TREATIES
Article 46
Provisions of internal law regarding competence to conclude treaties
1. A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as invalidating its
consent unless that violation was manifest and concerned a rule of its internal law of fundamental
importance.
2. A violation is manifest if it would be objectively evident to any State conducting itself in the matter in
Under Article 47, an omission by the representative to observe a specific internal restriction on
his authority may not be invoked as invalidating consent unless the restriction was previously
notified to other negotiating States.
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accordance with normal practice and in good faith.
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Article 47
Specific restrictions on authority to express the consent of a State
If the authority of a representative to express the consent of a State to be bound by a particular treaty
has been made subject to a specific restriction, his omission to observe that restriction may not be
invoked as invalidating the consent expressed by him unless the restriction was notified to the other
negotiating States prior to his expressing such consent.
3.
Adoption and Signature
Generally, the adoption of the text of a treaty takes place by the agreement of all the States
participating in the negotiations.
If the parties which took part in the drawing up of a treaty have not reached agreement on the
form and content of the treaty, there is obviously no consensus ad idem and, hence, no text to
be adopted.
The rules on adoption are in Article 9 which provides that the adoption of the text of a treaty
takes place by the consent of all the States participating in its drawing up, except the adoption
of a treaty at an international conference, In the latter case, adoption takes place by the vote of
2/3 of the States present and voting, unless by the same majority, they decide to apply a
different rule.
Article 9
Adoption of the text
1. The adoption of the text of a treaty takes place by the consent of all the States participating in its
drawing up except as provided in paragraph 2.
2. The adoption of the text of a treaty at an international conference takes place by the vote of two
thirds of the States present and voting, unless by the same majority they shall decide to apply a different
rule.
Article 10 provides for authentication, the process by which the final text of a treaty is
established, consisting of certification that the document contains the definitive and authentic
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text and is not susceptible to alteration.
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Article 10
Authentication of the text
The text of a treaty is established as authentic and definitive:
a) by such procedure as may be provided for in the text or agreed upon by the States participating
in its drawing up; or
b) failing such procedure, by the signature, signature ad referendum or initialing by the
representatives of those States of the text of the treaty or of the Final Act of a conference
incorporating the text.
The text of a treaty is established as authentic by such procedure as may be provided for in the
text or agreed upon by the parties or by the signature, signature ad referendum, or initialing by
the representatives of the negotiating States.
The authentication of the text of the treaty in the form which the parties may later ratify may be
done in a number of ways, of which initialing or signing are the common ones.
The method to be used is a matter for the negotiating States to agree upon. In the case of
treaties adopted by international organizations, the question of an authentic text is usually left
to the officials of the organization itself, while international conferences often follow the
practice of embodying the text of the treaty' in their Final Act.
The Final Act is the title of the instrument which records the winding up of the conference
summoned to conclude a treaty.
It usually summarizes the terms of reference of the conference and enumerates the States or
heads of state represented the delegates who took part in the discussions and the instruments
adopted by the conference.
It also sets out resolutions, declarations, and recommendations adopted by the conference
which were not incorporated as provisions of the treaty.
Sometimes, it also contains interpretations of provisions in the formal instruments adopted by
the conference.
Expression of Consent to be Bound - Ratification, Accession, etc
Articles 11 - 17 of the Convention deal with the various means by which the consent of a State
to be bound by a treaty can be expressed.
A State does not consent to be bound by a treaty merely by adopting or authenticating it text or
by signing a Final Act; it must do something further.
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4.
The Final Act is signed, but does not normally require to be ratified.
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Article 11 lists the various means by which consent may be expressed as signature, exchange of
instruments constituting a treaty, ratification, acceptance or approval, accession, or by any
other agreed means.
Article 11
Means of expressing consent to be bound by a treaty
The consent of a State to be bound by a treaty may be expressed by signature, exchange of instruments
constituting a treaty, ratification, acceptance, approval or accession, or by any other means if so agreed.
Under Article 12, signature expresses the consent to be bound when
a) the treaty so provides,
b) it is otherwise established that the negotiating States were so agreed, or
c) the intention of a State that signature should express its consent is apparent from the
full powers of its representative or was expressed during the negotiations.
Article 12
Consent to be bound by a treaty expressed by signature
1. The consent of a State to be bound by a treaty is expressed by the signature of its representative
when:
a) the treaty provides that signature shall have that effect;
b) it is otherwise established that the negotiating States were agreed that signature should have
that effect; or
c) the intention of the State to give that effect to the signature appears from the full powers of its
representative or was expressed during the negotiation.
2. For the purposes of paragraph 1:
a) the initialing of a text constitutes a signature of the treaty when it is established that the
negotiating States so agreed;
b) the signature ad referendum of a treaty by a representative, if confirmed by his State,
constitutes a full signature of the treaty.
Many multilateral treaties, especially those concluded within the UN, or at a conference
convened by the UN, will provide that they will be "open to signature" until a specified date,
Under Article 13-Exchange of instruments constituting the treaty, as a means of expression of
consent to be bound, shall have effect if the instruments themselves so provide or if the states
parties so agreed.
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after which signature will no longer be possible. Thereafter a State may only accede.
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Article 13
Consent to be bound by a treaty expressed by an exchange of instruments constituting a treaty
The consent of States to be bound by a treaty constituted by instruments exchanged between them is
expressed by that exchange when:
(a) the instruments provide that their exchange shall have that effect; or
(b) it is otherwise established that those States were agreed that the exchange of instruments should
have that effect.
Quite often, the notes will provide that the agreement constituted by the exchange of notes will
not enter into force until each has informed the other that its constitutional formalities have
been completed. In the vast majority of cases, the exchange is between two States, i.e., in the
case of bilateral treaties.
Ratification is defined by Article 2(1) (b) of the Convention as the international act whereby a
State establishes on the international plane its consent to be bound.
Ratification consists of
a) the execution of an instrument of ratification by the executive, and
b) either its exchange for the instrument of ratification of the other State, in the case of a
bilateral treaty, or its lodging with the depositary, in the case of a multilateral treaty
The rationale for ratification is threefold.
i.
First, the treaty may require legislation before it enters into force for the State.
ii.
Second, the constitution may require parliamentary approval, or some other procedure,
like publication, before the State can ratify the treaty.
iii.
Finally, the State may need time to consider the implications of the treaty before it
accepts to be bound by its provisions - some kind of breathing space that allows time for
reflection, even if the State might have taken an active part in the negotiations.
Under Article 14 of the Convention, State consent to be bound by a treaty is expressed by
ratification when
a) The treaty so provides,
b) It is otherwise established that the negotiating States were agreed that ratification
signature ad referendum), or
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c) The representative of the State has signed the treaty subject to ratification (i.e.,
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should be required,
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d) The intention of the State to sign subject to ratification appears from the full powers of
its representative or was expressed during the negotiations.
Article 14
Consent to be bound by a treaty expressed by ratification, acceptance or approval
1. The consent of a State to be bound by a treaty is expressed by ratification when:
a) the treaty provides for such consent to be expressed by means of ratification;
b) it is otherwise established that the negotiating States were agreed that ratification should be
required;
c) the representative of the State has signed the treaty subject to ratification or
d) the intention of the State to sign the treaty subject to ratification appears from the full powers
of its representative or was expressed during the negotiation.
(reth
2. The consent of a State to be bound by a treaty is expressed by acceptance or approval under
conditions similar to those which apply to ratification.
The Convention does not say whether in the absence of a ratification clause, every treaty
requires ratification. However, the popular view is that where the treaty is silent on ratification,
then the same is not necessary to express the State's consent to be bound by the treaty.
Besides, signature of a treaty imposes no obligation to ratify though a State should refrain from
signature if it has little intention of ratifying.
Consent to be bound by a treaty is expressed by acceptance or approval under conditions similar
to those which apply to ratification.
Accession is the process by which non-negotiating and non-signatory States subsequently
become parties to a treaty.
Under Article 15, the consent of a State to be bound by a treaty is expressed by the means of
accession if
a) The treaty itself so provides,
b) It is otherwise established that the negotiating States were agreed that consent could
be so expressed; or
c) All the parties have subsequently agreed that a State may express its consent by such
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means.
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Article 15
Consent to be bound by a treaty expressed by accession
The consent of a State to be bound by a treaty is expressed by accession when:
a) The treaty provides that such consent may be expressed by that State by means of
accession;
b) It is otherwise established that the negotiating States were agreed that such consent may
be expressed by that State by means of accession; or
c) All the parties have subsequently agreed that such consent may be expressed by that State
by means of accession.
Accession may occur before or after the treaty has entered into force. It should be noted,
however, that no State has a right to accede unless the treaty so provides or the parties agree.
Besides, if the treaty provides that a State may accede only after a certain date or event, but an
instrument of accession is received before then, the depositary will inform the State that the
instrument will be held until that date has arrived or the event has happened.
Until then, the instrument will not be counted for the purpose of calculating when the
conditions for entry into force have been met.
Unless the treaty otherwise provides, instruments of ratification, acceptance, approval or
accession establish the consent of a State to be bound by a treaty upon:
a) Their exchange between the contracting States,
b) Their deposit with the depositary, or
c) Their notification to the contracting States or to the depositary, if so agreed.
The penultimate stage in the treaty making process is the period between signature of the
treaty (where it is subject to ratification) and entry into force.
In the period prior to the entry into force of a treaty, the acts of adopting, signing and
consenting to be bound will create certain rights and obligations for the negotiating States, and
for any depositary.
The most obvious relate to those matters which have to be attended to so that the treaty can
enter into force.
Article 18 requires a State to refrain from acts which would defeat the object and purpose of a
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Article 18
Obligation not to defeat the object and purpose of a treaty prior to its entry into force
A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
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treaty before its entry into force for that State.
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a) it has signed the treaty or has exchanged instruments constituting the treaty subject to
ratification, acceptance or approval, until it shall have made its intention clear not to become a
party to the treaty; or
b) it has expressed its consent to be bound by the treaty, pending the entry into force of the treaty
and provided that such entry into force is not unduly delayed.
When the treaty is subject to ratification, acceptance or approval, this obligation lasts until the
State has made clear its intention not to become a party.
States which have signed a treaty requiring ratification have thereby placed certain limitations
upon their freedom of action in respect to the subject matter of the treaty during the period
which precedes the entry into force of the treaty.
The obligation under Article 18 does not, however, prohibit a State from withdrawing its
consent to be bound before the treaty enters into force.
The obligation under the article is to refrain from acts which would defeat the object and
purpose of the treaty before its entry into force for the State.
It relates, therefore, to the substance of the treaty, rather than the procedure by which the
State consents to be bound or by which the treaty enters into force.
Mere withdrawal of an instrument will not, in itself, be a breach of the obligation in Article 18,
since it must have the effect of defeating the object and purpose of the treaty.
Reservations
When a State expresses, its consent to be bound by a treaty, it is allowed to indicate that it is
not prepared to accept a particular term or provision thereof or that it wishes some other
variation in its favour, unless this is prohibited by the treaty itself or unless the treaty does not
include the particular modification or variation contemplated by the State party to the treaty or
unless the modification proposed is incompatible with the object and purpose of the treaty.
Article 2(1) (d) defines a reservation as a unilateral statement, however phrased or named,
made by a State, when signing, ratifying, accepting, approving or acceding to a treaty,
whereby it purports to exclude or modify the legal effect of certain provisions of the treaty in
Although a reservation is unilateral in the sense that it has not been agreed by the negotiating
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States, two or more States can agree to make the same reservation.
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their application to that State.
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Reservations are different from interpretative declarations. The latter are unilateral
declarations, however phrased or named, made by a State or by an international organization,
whereby that State or organization purports to clarify the meaning or scope attributed by the
declarant to the treaty or certain specific provisions thereof.
During the course of the negotiation of a multilateral treaty there will often be differences of
view as to the meaning of a particular provision.
If these cannot be solved, a delegation may make a formal statement expressing the
interpretation favoured by its government.
An interpretative declaration will become an element in the interpretation of the treaty, and,
provided it is not a disguised reservation, the rules on interpretation will apply to it.
If other parties do not make conflicting declarations or indicate their disagreement, they may be
regarded as having tacitly accepted it.
The 1969 Vienna Convention on the Law of Treaties does not distinguish between bilateral and
multilateral treaties, even for reservations. One therefore has to look to basic principles and
state practice in examining the effect of reservations and interpretative declarations made in
connection with bilateral treaties.
Although the Convention is silent on the matter, a reservation cannot be made to a bilateral
treaty.
Since there are only two possible parties, a bilateral treaty is more like a contract, all the terms
of which must be agreed before it can bind the parties.
Making a reservation to a bilateral treaty amounts, therefore, to a request for a modification to
the treaty, usually in favour of the requesting State. The treaty cannot, therefore, be binding
unless and until the other State accepts.
The reservations regime of the Convention is set out in Articles 19 – 23, and may be summarized
as follows:-
1. States are entitled to formulate a reservation on signature or ratification of treaty unless the
treaty prohibits reservations, or the treaty provides that only specified reservations, which do
2. Where the treaty is silent on reservations, States are entitled to formulate reservation unless
the reservation is incompatible with the object and purpose of the treaty. This is the test laid
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the object and purpose of the treaty.
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not include the reservation in question, may be made, or the reservation is incompatible with
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down by the ICJ in the Advisory Opinion in the Reservations to the Convention on Genocide
Case (1951) ICJ Rep. 11
ICJ in the Advisory Opinion in the Reservations to the Convention on Genocide Case (1951) ICJ Rep. 11
The question concerning reservations to the Convention on the Prevention and Punishment of the Crime
of Genocide had been referred for an advisory opinion to the Court by the General Assembly of the
United Nations (G.A. resolution of November 16, 1950) in the following terms:
"In so far as concerns the Convention on the Prevention and Punishment of the Crime of Genocide in the
event of a State ratifying or acceding to the Convention subject to a reservation made either on
ratification or on accession, or on signature followed by ratification:
By 7 votes to 5 the Court gave the following answers to the questions referred to:
On Question I: Can the reserving State be regarded as being a party to the Convention while still
maintaining its reservation if the reservation is objected to by one or more of the parties to the
Convention but not by others?
a State which has made and maintained a reservation which has been objected to by one or more of the
parties to the Convention but not by others, can be regarded as being a party to the Convention if the
reservation is compatible with the object and purpose of the Convention; otherwise, that State cannot
be regarded as being a party to the Convention.
On Question II: If the answer to question I is in the affirmative, what is the effect of the reservation as
between the reserving State and:
(a) The parties which object to the reservation?
if a party to the Convention objects to a reservation which it considers to be incompatible with the
object and purpose of the Convention, it can in fact consider that the reserving State is not a party to
the Convention;
(b) Those which accept it?
if, on the other hand, a party accept the reservation as being compatible with the object and purpose of
the Convention, it can in fact consider that the reserving State is a party to the Convention;
an objection to a reservation made by a signatory State which has not yet ratified the Convention can
have the legal effect indicated in the reply to Question I only upon ratification. Until that moment it
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(a) By a signatory which has not yet ratified?
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On Question III: What would be the legal effect as regards the answer to question I if an objection to a
reservation is made:
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merely serves as a notice to the other State of the eventual attitude of the signatory State;
(b) By a State entitled to sign or accede but which has not yet done so?"
an objection to a reservation made by a State which is entitled to sign or accede but which has not yet
done so is without legal effect.
The first question refers to whether a State which has made a reservation can, while maintaining it, be
regarded as a party to the Convention on Genocide, when some of the parties object to the reservation.
In its treaty relations, a State cannot be bound without its consent. A reservation can be effected only
with its agreement. On the other hand, it is a recognised principle that a multilateral Convention is the
result of an agreement freely concluded.
To this principle was linked the notion of integrity of the Convention as adopted, a notion which, in its
traditional concept, involved the proposition that no reservation was valid unless it was accepted by all
contracting parties. This concept retains undisputed value as a principle, but as regards the Genocide
Convention, its application is made more flexible by a variety of circumstances among which may be
noted the universal character of the United Nations under whose auspices the Convention was
concluded and the very wide degree of participation which the Convention itself has envisaged. This
participation in conventions of this type has already given rise to greater flexibility in practice.
More general resorts to reservations, very great allowance made to tacit assent to reservations, the
admission of the State which has made the reservation as a party to the Convention in relation to the
States which have accepted it, all these factors are manifestations of a new need for flexibility in the
operation of multilateral conventions. Moreover, the Convention on Genocide, although adopted
unanimously, is nevertheless the result of a series of majority votes - which may make it necessary for
certain States to make reservations.
In the absence of an article in the Convention providing for reservations, one cannot infer that they are
prohibited. In the absence of any express provisions on the subject, to determine the possibility of
making reservations as well as their effects, one must consider their character, their purpose, their
provisions, their mode of preparation and adoption. The preparation of the Convention on Genocide
shows that an undertaking was reached within the General Assembly on the faculty to make
reservations and that it is permitted to conclude therefrom that States, becoming parties to the
Convention, gave their assent thereto.
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Its purpose is purely humanitarian and civilising. The contracting States do not have any individual
advantages or disadvantages nor interests of their own, but merely a common interest. This leads to the
conclusion that the object and purpose of the Convention imply that it was the intention of the General
Assembly and of the States which adopted it, that as many States as possible should participate. This
purpose would be defeated if an objection to a minor reservation should produce complete exclusion
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What is the character of the reservations which may be made and the objections which may be raised
thereto? The solution must be found in the special characteristics of the Convention on Genocide. The
principles underlying the Convention are recognised by civilised nations as binding on States even
without any conventional obligation. It was intended that the Convention would be universal in scope.
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from the Convention.
On the other hand, the contracting parties could not have intended to sacrifice the very object of the
Convention in favour of a vague desire to secure as many participants as possible. It follows that the
compatibility of the reservation and the object and the purpose of the Convention is the criterion to
determine the attitude of the State which makes the reservation and of the State which objects.
Consequently, question I, on account of its abstract character, cannot be given an absolute answer. The
appraisal of a reservation and the effect of objections depend upon the circumstances of each individual
case.
The Court then examined question II by which it was requested to say what was the effect of a
reservation as between the reserving State and the parties which object to it and those which accept it.
The same considerations apply. No State can be bound by a reservation to which it has not consented,
and therefore each State, on the basis of its individual appraisals of the reservations, within the limits of
the criterion of the object and purpose stated above, will or will not consider the reserving State to be a
party to the Convention.
In the ordinary course of events, assent will only affect the relationship between the two States. It might
aim, however, at the complete exclusion from the Convention in a case where it was expressed by the
adoption of a position on the jurisdictional plane: certain parties might consider the assent as
incompatible with the purpose of the Convention, and might wish to settle the dispute either by special
agreement or by the procedure laid down in the Convention itself.
The disadvantages which result from this possible divergence of views are real. They could have been
remedied by an article on reservations. They are mitigated by the common duty of the contracting
States to be guided in their judgment by the compatibility or incompatibility of the reservation with the
object and purpose of the Convention. It must clearly be assumed that the contracting States are
desirous of preserving intact at least what is essential to the object of the Convention.
The Court finally turned to question III concerning the effect of an objection made by a State entitled to
sign and ratify but which had not yet done so, or by a State which has signed but has not yet ratified. In
the former case, it would be inconceivable that a State possessing no rights under the Convention could
exclude another State. The case of the signatory States is more favourable. They have taken certain
steps necessary for the exercise of the right of being a party. This provisional status confers upon them a
right to formulate as a precautionary measure objections which have themselves a provisional
character. If signature is followed by ratification, the objection becomes final. Otherwise, it disappears.
Therefore, the objection does not have an immediate legal effect but expresses and proclaims the
attitude of each signatory State on becoming a party.
3. Reservations to a restricted multilateral treaty require acceptance by all parties thereto, and
4. In other cases, and unless the particular treaty otherwise provides,
i.
The express or tacit acceptance of a reservation by another contracting State constitutes
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of the competent organ of the organization, unless the treaty otherwise provides.
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reservations to a constituent instrument of an international organization require the acceptance
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the reserving State a party to the treaty in relation to that other State, tacit acceptance
being assumed if no objection is raised within specified period;
ii.
An objection to a reservation by another contracting State does not preclude the entry
into force of the treaty as between the objection and reserving States unless a contrary
intention is definitely expressed by the objecting State; and
iii.
An act expressing a State consent to be bound by treaty containing a reservation is
effective as soon as at least one other contracting State has accepted the reservation.
Unless the treaty otherwise provides, a reservation is considered to have been accepted
by a State if shall have raised no objection to the reservation by the end of a period of
twelve months after it was notified of the reservation or by the date on which it
expressed its consent to be bound by the treaty, whichever is later.
2.
3.
4.
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1.
Article 20
Acceptance of and objection to reservations
A reservation expressly authorized by a treaty does not require any subsequent acceptance by
the other contracting States unless the treaty so provides.
When it appears from the limited number of the negotiating States and the object and purpose
of a treaty that the application of the treaty in its entirety between all the parties is an essential
condition of the consent of each one to be bound by the treaty, a reservation requires
acceptance by all the parties.
When a treaty is a constituent instrument of an international organization and unless it
otherwise provides, a reservation requires the acceptance of the competent organ of that
organization.
In cases not falling under the preceding paragraphs and unless the treaty otherwise provides:
a) acceptance by another contracting State of a reservation constitutes the reserving State
a party to the treaty in relation to that other State if or when the treaty is in force for
those States;
b) an objection by another contracting State to a reservation does not preclude the entry
into force of the treaty as between the objecting and reserving States unless a contrary
intention is definitely expressed by the objecting State;
c) an act expressing a State’s consent to be bound by the treaty and containing a
reservation is effective as soon as at least one other contracting State has accepted the
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SECTION 2. RESERVATIONS
Article 19
Formulation of Reservations
A State may, when signing, ratifying, accepting, approving or acceding to a treaty, formulate a
reservation unless:
a) the reservation is prohibited by the treaty;
b) the treaty provides that only specified reservations, which do not include the reservation in
question, may be made; or
c) in cases not failing under subparagraphs (a) and (b), the reservation is incompatible with the
object and purpose of the treaty.
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reservation.
5. For the purposes of paragraphs 2 and 4 and unless the treaty otherwise provides, a reservation
is considered to have been accepted by a State if it shall have raised no objection to the
reservation by the end of a period of twelve months after it was notified of the reservation or by
the date on which it expressed its consent to be bound by the treaty, whichever is later.
Article 21 of the Convention deals with the legal effects of reservations and of objections
thereto.
A reservation which has been established with regard to another party
a) modifies for the reserving State in its relations with that other party the provisions of
the treaty to which the reservation relates to the extent of the reservation, and
b) Under Article 21 (2)-modifies those provisions to the same extent for that other party in
its relations with the reserving State. However, the reservation does not modify the
provisions of the treaty for the other parties to the treaty as between themselves.
Article 21 (3) provides that when an objecting State has not opposed the entry into force of the
treaty between it and the reserving State, both States are not affected by the provisions to
which the reservation relates.
Article 21
Legal effects of reservations and of objections to reservations
1. A reservation established with regard to another party in accordance with articles 19, 20 and 23:
a) modifies for the reserving State in its relations with that other party the provisions of
the treaty to which the reservation relates to the extent of the reservation; and
b) modifies those provisions to the same extent for that other party in its relations with the
reserving State.
2. The reservation does not modify the provisions of the treaty for the other parties to the treaty
inter se.
3. When a State objecting to a reservation has not opposed the entry into force of the treaty
between itself and the reserving State, the provisions to which the reservation relates do not
apply as between the two States to the extent of the reservation.
Under Article 22, a State party to a treaty may, at any time, withdraw its reservations or its
objection thereto and the consent of any State which has accepted the reservation is not
A withdrawal becomes effective only after notice of it has been received by the party
concerned or, in the case of withdrawal of an objection, only after notice of it has been
received by the State which forwarded the reservation.
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required for its withdrawal unless the treaty otherwise provides.
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Article 22
Withdrawal of reservations and of objections to reservations
1. Unless the treaty otherwise provides, a reservation may be withdrawn at any time and the
consent of a State which has accepted the reservation is not required for its withdrawal.
2. Unless the treaty otherwise provides, an objection to a reservation may be withdrawn at any
time.
3. Unless the treaty otherwise provides, or it is otherwise agreed:
a) the withdrawal of a reservation becomes operative in relation to another contracting
State only when notice of it has been received by that State;
b) the withdrawal of an objection to a reservation becomes operative only when notice of
it has been received by the State which formulated the reservation.
Under Article 23 any reservation, its express acceptance, an objection to it or its withdrawal
must be in writing and communicated to the contracting State and any other States entitled to
become parties to the treaty.
1.
2.
3.
4.
Article 23
Procedure regarding reservations
A reservation, an express acceptance of a reservation and an objection to a reservation must be
formulated in writing and communicated to the contracting States and other States entitled to
become parties to the treaty.
If formulated when signing the treaty subject to ratification, acceptance or approval, a
reservation must be formally confirmed by the reserving State when expressing its consent to be
bound by the treaty. In such a case the reservation shall be considered as having been made on
the date of its confirmation.
An express acceptance of, or an objection to, a reservation made previously to confirmation of
the reservation does not itself require confirmation.
The withdrawal of a reservation or of an objection to a reservation must be formulated in
writing.
The principle of pacta sunt servanda, which underwrites the integrity of treaties as a whole,
presupposes that the pact should be in force, that is, valid according to the ordinary rules
governing the conclusion of a treaty.
upon the parties to it and must be performed in good faith.
It is followed in Article 27 by its corollary, that is, a party may not invoke the provisions of its
internal law as justification for its failure to perform a treaty.
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This principle is provided for under Article 26 which provides that every treaty in force is binding
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Thus, if a new law or modification to existing law is needed in order to carry out the obligations
which will be laid upon it by the treaty, a negotiating State should ensure that this is done at
least by the time the treaty enters into force for it.
If this is not done, the State may risk being in breach of its treaty obligations and be liable in
international law for any injury that may be suffered by another State.
Besides, a State cannot plead a change of government to excuse failure to implement a treaty.
Since the treaty is entered into on behalf of the State, the new government must also perform
the treaty.
Interpretation of Treaties
Despite the expertise and care that are involved in drafting, there is no "treaty which cannot
raise some question of interpretation.
Many disputes submitted to international adjudication involve some problem of treaty
interpretation.
Just as the interpretation of legislation is the constant concern of any government lawyer, treaty
interpretation forms a significant part of the daily work of a foreign ministry advisor.
The interpretation of treaties, like that of any legal instrument, depends on what the aim and
goal of treaty interpretation are.
There are, however, three main approaches to treaty interpretation.
i.
Subjective Approach: First, there is the approach which asserts that the primary, and
indeed only, aim and goal of treaty interpretation are to ascertain the intention of the
parties to the treaty.
ii.
Objective Approach: The second approach starts from the proposition that there must
exist a presumption that the intention of the parties is reflected in the text of the treaty
which they have drawn up, and that the primary goal of treaty interpretation is to
ascertain the meaning of the text.
iii.
Teleological Approach: Finally, there is the approach which maintains that the decision
maker must first ascertain the object and purpose of a treaty and then interpret it so as
These three approaches are referred to as the "subjective" (intentions of the parties and
founding fathers), the "objective" (the textual/ordinary meaning of words), and the
"teleological" (aims and objectives) approaches.
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to give effect to the object and purpose.
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These approaches are not, in practice, mutually exclusive. Placing undue emphasis on the text,
without regard to what the parties intended, or what the parties are believed to have intended
regardless of the text, or on the perceived object and purpose in order to make the treaty more
effective, irrespective of the intention of the parties, is unlikely to produce a satisfactory result.
SUBJECTIVE APPROACH
The subjective approach looks primarily to the actual intentions of the parties. In the
interpretation of treaties, the principle question under this approach is concerned with the "real
will" of the parties.
It attempts to elucidate the text of the treaty, which is seen as merely an expression of the will
of the parties, by reference to the whole course of negotiations leading to the conclusion of the
treaty, and seems to investigate the actual intentions of the parties at the time of the adoption
of the final text.
OBJECTIVE APPROACH
The objective (textual/literal) approach places the principal emphasis on the actual words of
the treaty. While the subjective approach treats as the first question, "what did the parties
really mean?," the objective approach takes the first question as, '"what did the parties say?"
Advocates of this approach admit that extrinsic sources may be used if the text is ambiguous or
if the meaning of the words leads to a conclusion which is obviously absurd or unreasonable.
The jurisprudence of the International Court of Justice supports the textual approach. For
instance, in the UN Admissions Case (1948) ICJ Rep. 57, (Based on interpretation of Article 4 of
the UN Charter )
UN Admissions Case (1948) ICJ Rep. 57,
member of the Security Council or the General Assembly could attach conditions to the admission to a
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The Court held that the provisions of Article 4(1) of the Charter of the UN were exhaustive and that no
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Article 4
1. Membership in the United Nations is open to all other peace-loving states which accept the
obligations contained in the present Charter and, in the judgment of the Organization, are able and
willing to carry out these obligations.
2. The admission of any such state to membership in the United Nations will be effected by a decision
of the General Assembly upon the recommendation of the Security Council.
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new member beyond those in the paragraph. By Article 4(1) of the UN Charter, membership to the UN is
open to "peace-loving States which accept the obligations contained in the present Charter and, in the
judgment of the Organization, are able and willing to carry out these obligations." Under paragraph 2,
the admission of any such State to membership in the United Nations will be effected by a decision of
the General Assembly upon the recommendations of the Security Council.
A number of applicants for admission to the UN were vetoed by the Soviet Union for political reasons,
and the Soviet Union stated that it would not veto the admission of, for instance, Italy, if other Security
Council members would vote for admission of applicants supported by the Soviet Union. The General
Assembly asked the Court for an advisory opinion as to whether members of the Council or the
Assembly could attach conditions to the admission of a new member beyond those in paragraph 1, and
especially if an affirmative vote could be made conditional upon the admission of any other applicant.
The Court said:
The text of paragraph 1, by the enumeration which it contains and the choice of terms, clearly
demonstrates the intention of its authors to establish a legal rule which, while it fixes the conditions of
admission, determines also the reasons for which admission may be refused; for the text does not
differentiate between these two cases, and any attempt to restrict it to one of them would be purely
arbitrary ... The natural meaning of the words leads to the conclusion that these conditions constitute
the exhaustive, enumeration and are not merely stated by way of guidance or example. The provision
would lose its significance and weight if other conditions, unconnected with those laid down, could be
demanded.
See also Besides, in the Competence of The General Assembly For The Admission of A State to
The United Nations Case (1950) ICJ Rep. 4, the ICJ stated:
Competence of The General Assembly For The Admission of A State to The United Nations Case (1950)
ICJ Rep. 4,
The ICJ stated: The Court considers it necessary to say that the first duty of a tribunal which is called
upon to interpret and apply the provisions of a treaty, is to endeavor to give effect to them in their
give effect to a provision of a treaty by giving to the words used in it their natural and ordinary meaning,
it may not interpret the words seeking to give them some other meanings.
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and ordinary meaning make sense in their context that is an end of the matter ... When the Court can
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natural and ordinary meaning in the context in which they occur. If the relevant words in their natural
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See also: Certain Expenses Of The United Nations Case (1962) ICJ Rep. 151.
Certain Expenses Of The United Nations Case (1962) ICJ Rep. 151.
TELEOLOGICAL APPROACH
The teleological approach seeks to interpret the treaty in the light of its object and purpose.
The first question under this approach is not about the meaning of the particular clause which is
the subject of interpretation, but a broader inquiry into the objects and purposes of the treaty
as a whole and the individual provisions of the treaty are construed so as to give effect to these
objects and purposes.
To a certain extent, this approach is a combination of elements of the first two.
In so far as it relies on the objects and purposes of the treaty as they are expressed in the text,
and especially in the preamble or can be gathered from a reading of the treaty as a whole, the
teleological approach is essentially a variant of the textual approach.
In so far as it goes beyond the text and seeks to ascertain the original aims of the parties in
concluding the treaty, by reference to the entire course of negotiations and the circumstances
of its conclusion, it is the subjective approach in another disguise.
Articles 31 - 33 of the Convention deal with the interpretation of treaties.
Article 31(1) provides the basic rule, which is that a treaty must be interpreted in good faith in
accordance with the ordinary meaning to be given to the terms of the treaty in their context and
in the light of its objects and purposes.
One must, therefore, consider each of the three main elements of treaty interpretation, that is,
the text, its context and object and purpose of the treaty.
By "context" is meant material related to the conclusion of the treaty. Besides, the first
principle, namely, interpretation in good faith, flows directly from the principle of pacta sunt
servanda enshrined in Article 26; interpretation is part of the performance of the treaty and
therefore the process of examining the relevant materials and assessing them must be done in
Paragraph 2 of the Article 31 specifies what comprises the context of the treaty for the purpose
of interpretation. In addition to the text, the preamble and annexes, the context comprises
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but only in the context of the treaty and in the light of its object and purpose.
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good faith. Further, the determination of the ordinary meaning cannot be done in the abstract,
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a) Any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty,
b) Any instrument made by one or more parties in connection with the conclusion of the
treaty and accepted by the other parties as an instrument related to the treaty.
Paragraph 3 of Article 31 states that together with the context there shall be taken into account
a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions,
b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation, and
c) any relevant rules of international law applicable in the relations between the parties.
A special meaning must be given to a term if it is established that the parties so intended (para.
4).
Notwithstanding the apparent meaning of a term in its context, it is open to a party to invoke
any special meaning, but the burden of proof of the special meaning will rest on that party.
Where the interpretation leaves the meaning ambiguous or obscure, or leads to a result which is
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Article 31
General rule of interpretation
1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be
given to the terms of the treaty in their context and in the light of its object and purpose.
2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to
the text, including its preamble and annexes:
a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related
to the treaty.
3.
There shall be taken into account, together with the context:
a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
c) any relevant rules of international law applicable in the relations between the
parties.
4.
A special meaning shall be given to a term if it is established that the parties so intended.
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interpretation, including the travaux preparatoires of the treaty and the circumstances of its
conclusion.
Article 32
Supplementary means of interpretation
Recourse may be had to supplementary means of interpretation, including the preparatory work of the
treaty and the circumstances of its conclusion, in order to confirm the meaning resulting from the
application of Article 31, or to determine the meaning when the interpretation according to Article 31:
(a) leaves the meaning ambiguous or obscure; or
(b) leads to a result which is manifestly absurd or unreasonable.
The travaux preparatoires of a treaty is not a primary means of interpretation, but is an
important supplementary means.
International tribunals have for long had recourse to the travaux for the purpose of confirming
the meaning arrived at by the application of the general rule as set out in Article 31.
In the case where reliance on the primary means produces an interpretation which leaves the
meaning ambiguous and obscure or leads to a result which is manifestly absurd or
unreasonable, recourse to the same supplementary means of interpretation will be for the
purpose of not confirming, but determining, the meaning.
The International Law Commission did not define what is included in the travaux, but it is
generally understood to include written material such as successive drafts of the treaty,
conference records, explanatory statements by an expert at a codification conference and
uncontested interpretative statements by the chairperson of a drafting committee.
Besides, Article 32 gives only examples of the principal supplementary means of interpretation.
One may therefore look at other treaties on the same subject matter adopted either before or
after the one in question which use the same or similar terms.
It is also legitimate to assume that the parties to a treaty did not intend that the treaty would be
incompatible with customary international law.
Most treaties, bilateral as well as multilateral, are either bilingual or multilingual. Indeed,
multilateral negotiations are usually held in more than one language with the result that the
Treaties which have been so concluded can cause problems of interpretation if there are
material differences between the language texts, unless the treaty provides that in the case of
inconsistency, the text in one language shall prevail.
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treaty adopted thereafter will be concluded, similarly, in more than one language.
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Under Article 33(1), unless the treaty provides or the parties otherwise agree that in the case of
divergence between the texts a particular text shall prevail, the treaty is equally authoritative in
each language in which it has been authenticated. Sometimes, the parties expressly state in the
treaty if the various language texts are equally authentic.
Under Article 33(2), if a version of a treaty is produced in a language other than those ii which
the treaty has been authenticated, it is not an authentic text, unless the treaty sc provides or the
parties so agree.
If there are two or more authentic texts, the terms of the treaty are presumed to have the same
meaning in each authentic text.
Paragraph 4 lays down the residual rule that, provided there is no provision for i particular text
to prevail, when a comparison of the authentic texts discloses a difference of meaning, which
the application of Article 31 and 32 does not remove, one must accept the meaning which best
reconciles the texts.
1)
2)
3)
4)
Article 33
Interpretation of treaties authenticated in two or more languages
When a treaty has been authenticated in two or more languages, the text is equally
authoritative in each language, unless the treaty provides or the parties agree that, in case of
divergence, a particular text shall prevail.
A version of the treaty in a language other than one of those in which the text was
authenticated shall be considered an authentic text only if the treaty so provides or the parties
so agree.
The terms of the treaty are presumed to have the same meaning in each authentic text.
Except where a particular text prevails in accordance with paragraph 1, when a comparison of
the authentic texts discloses a difference of meaning which the application of articles 31 and 32
does not remove, the meaning which best reconciles the texts, having regard to the object and
purpose of the treaty, shall be adopted.
Invalidity of Treaties
Articles 46 - 53 of the Convention deal with the invalidity of treaties.
The Convention lays down five specific grounds which may be invoked as invalidating the
These are
a) Violation of internal law,
b) Error
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consent of i state to be bound by a treaty.
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c) Fraud
d) Corruption of State representative, and
e) Coercion.
These grounds must be considered in the light of Article 42(1) of the Convention which provides
that the validity of a treaty or of the consent of a state to be bound by a treaty may be
impeached only through the application of the Convention, a provision that is meant to prevent
a State party to a treaty from attempting to evade an inconvenient treaty obligation by alleging
spurious grounds of invalidity.
PART V.
INVALIDITY, TERMINATION AND SUSPENSION OF THE OPERATION OF TREATIES
SECTION 1. GENERAL PROVISIONS
Article 42
Validity and Continuance in Force of Treaties
1) The validity of a treaty or of the consent of a State to be bound by a treaty may be impeached
only through the application of the present Convention.
2) The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as
a result of the application of the provisions of the treaty or of the present Convention. The same
rule applies to suspension of the operation of a treaty.
(a)
Violation of Internal Law
As already noted, under the provisions of Articles 46 and 47, a State may not invoke a violation
of its internal law or a specific restriction on its representative's authority to express its consent
to be bound, as a ground for invalidating a treaty.
The two Article: are expressed in negative form ("may not invoke ... unless") to emphasize the
exceptional character of the cases in which these grounds may be invoked.
There are a number of procedures in treaty-making, such as ratification, which have been
specifically designed to enable a State to reflect fully before deciding whether or not to become
a party, and to comply with any constitutional requirements.
States are entitled to regard other States as having acted in good faith when their
Besides, these provisions are limited to those cases where the treaty is not subject to ratification
or similar process, since in that case the State would have an opportunity to repudiate any
unauthorized act of its representative.
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representatives express their consent to be bound.
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SECTION 2. INVALIDITY OF TREATIES
Article 46
Provisions of internal law regarding competence to conclude treaties
1) A State may not invoke the fact that its consent to be bound by a treaty has been expressed in
violation of a provision of its internal law regarding competence to conclude treaties as
invalidating its consent unless that violation was manifest and concerned a rule of its internal
law of fundamental importance.
2) A violation is manifest if it would be objectively evident to any State conducting itself in the
matter in accordance with normal practice and in good faith.
Article 47
Specific restrictions on authority to express the consent of a State
If the authority of a representative to express the consent of a State to be bound by a particular treaty
has been made subject to a specific restriction, his omission to observe that restriction may not be
invoked as invalidating the consent expressed by him unless the restriction was notified to the other
negotiating States prior to his expressing such consent.
b) Error
In customary international law, errors of substance have not been invoked as a ground for
vitiating the consent of State to be bound by a treaty. Neither have they been successfully
invoked even judicially
See The Temple of Preah Vihear (Cambodia vs Thailand) Case (1962) ICJ Rep. 6
The Temple of Preah Vihear (Cambodia vs Thailand) Case (1962) ICJ Rep. 6
Where the Court held that it is an established rule of law that the plea of error cannot be allowed as an
element vitiating consent if the party advancing it contributed by its own conduct to the error or could
have avoided it, if the circumstances were such as to put that party on notice of a possible error). This is
because modern treaty-making process is such that the risk of material error is reduced to the
This rule is declared by Article 48 of the Convention.
Error may be invoked as a ground for invalidating consent only if
a) the error relates to a fact or situation which was assumed by State invoking the error to
exist at the time when the treaty was concluded, and
b) that fact or situation formed an essential basis of its consent to be bound by a treaty.
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minimum, and in practice most alleged errors concern geographical errors, mostly errors on maps.
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Further, error may not be invoked by a State if it contributed by its own conduct to the error or
if the circumstances were such as to put the State on notice of a possible error.
Thus, only if the error is essential or fundamental to the obligations that a State believes it had
undertaken will it be a reason for invalidating the treaty.
Article 48
Error
1) A State may invoke an error in a treaty as invalidating its consent to be bound by the treaty if
the error relates to a fact or situation which was assumed by that State to exist at the time when
the treaty was concluded and formed an essential basis of its consent to be bound by the treaty.
2) Paragraph 1 shall not apply if the State in question contributed by its own conduct to the error
or if the circumstances were such as to put that State on notice of a possible error.
3) An error relating only to the wording of the text of a treaty does not affect its validity; article 79
then applies.
c) Fraud
Fraud exercised by a negotiating State to induce the conclusion of a treaty with another may
entitle the latter to claim that its consent to the treaty has been vitiated.
In State practice, however, examples of fraud as a ground for vitiating consent to be bound are
non-existent.
Notwithstanding, Article 49 provides that a State induced to conclude a Treaty by the fraudulent
conduct of another negotiating State may invoke the fraud as invalidating its consent to be
bound by the treaty.
The
expression
"fraudulent
conduct"
includes
any
deliberately
false
statements,
misrepresentations or other deceitful proceedings by which a State is induced to give consent
which it would otherwise give.
Fraud may be invoked with respect to particular clauses only, provided they are separable, are
not essential to the treaty, and it would not be unjust to continue performance of the rest of the
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treaty.
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Article 49
Fraud
If a State has been induced to conclude a treaty by the fraudulent conduct of another negotiating State,
the State may invoke the fraud as invalidating its consent to be bound by the treaty.
d) Corruption of a State Representative
Under Article 50, a State may invoke the corruption of its representative by another negotiating
State as invalidating its consent to be bound by a treaty.
In its commentary, the ILC limited the scope of the provision by stating that corruption was used
"expressly in order to indicate that only acts calculated to exercise a substantial influence on the
disposition of the representative to conclude the treaty" may be invoked and that a small
courtesy or favour shown to a representative will not be sufficient.
It is, however, unlikely that this provision could be invoked if the treaty is subject to ratification.
As with fraud, corruption may be invoked either with respect to the whole treaty or, subject to
conditions, to particular clauses (Article 44 (4)).
Article 50
Corruption of a representative of a State
If the expression of a State’s consent to be bound by a treaty has been procured through the corruption
of its representative directly or indirectly by another negotiating State, the State may invoke such
corruption as invalidating its consent to be bound by the treaty.
e) Coercion of Representative/State
The cardinal rule of international law and the cornerstone of peaceful relations among States is
stated in Article 2(4) of the UN Charter which prohibits States from the threat or use of force in
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Article 2 UN CHARTER
The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from
membership, shall fulfil in good faith the obligations assumed by them in accordance with the
present Charter.
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international relations.
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3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force
against the territorial integrity or political independence of any state, or in any other manner
inconsistent with the Purposes of the United Nations.
5. All Members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter, and shall refrain from giving assistance to any state against which the
United Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance of
international peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in
matters which are essentially within the domestic jurisdiction of any state or shall require the
Members to submit such matters to settlement under the present Charter; but this principle
shall not prejudice the application of enforcement measures under Chapter VII.
Accordingly, under Article 51 of the Convention, the expression of a State's consent to be
bound by a treaty which has been procured by the coercion of its representative through acts of
threats directed against him shall be without any legal effect.
Article 51
Coercion of a representative of a State
The expression of a State’s consent to be bound by a treaty which has been procured by the coercion of
its representative through acts or threats directed against him shall be without any legal effect.
Even if it were possible to separate out provisions of the treaty to which the State would have
no objection, this is not permitted: the whole treaty will be void (Article 44(5).
Such coercion may include, for instance, acts or threats of physical harm or blackmail and must
be directed against the representative as an individual or his family, and not in his
representative capacity.
Besides, under Article 52, a treaty whose conclusion has been procured by the threat or use of
principles of international law embodied in the Charter of the United Nations.
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Article 52
Coercion of a State by the threat or use of force
A treaty is void if its conclusion has been procured by the threat or use of force in violation of the
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force in violation o the principles of international law embodied in the UN Charter, shall be void.
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No separation of the provisions of the treaty is permitted (Article 44(5). It should be noted,
however, that if the treaty is multilateral, the participation of the coerced State will be void, but
not the treaty itself, the provisions of Article 44(5) being applicable to the provisions of the
treaty, not to its parties.
Further, Article 52 does not apply to economic or political pressure or to the threat or use of
lawful force so that, for instance, when the treaty is entered into pursuant to a decision of the
UN Security Council, it will not be void.
Article 44
Separability of treaty provisions
1. A right of a party, provided for in a treaty or arising under article 56, to denounce, withdraw
from or suspend the operation of the treaty may be exercised only with respect to the whole
treaty unless the treaty otherwise provides or the parties otherwise agree.
2. A ground for invalidating, terminating, withdrawing from or suspending the operation of a
treaty recognized in the present Convention may be invoked only with respect to the whole
treaty except as provided in the following paragraphs or in article 60.
3.
If the ground relates solely to particular clauses, it may be invoked only with respect to those
clauses where:
a) the said clauses are separable from the remainder of the treaty with regard to their
application;
b) it appears from the treaty or is otherwise established that acceptance of those clauses
was not an essential basis of the consent of the other party or parties to be bound by
the treaty as a whole; and
c) continued performance of the remainder of the treaty would not be unjust.
4.
In cases falling under articles 49 and 50, the State entitled to invoke the fraud or corruption may
do so with respect either to the whole treaty or, subject to paragraph 3, to the particular clauses
alone.
5.
In cases falling under articles 51, 52 and 53, no separation of the provisions of the treaty is
permitted.
Indeed, Article 75 of the Convention provides expressly that its provisions are without prejudice
to any obligations in relation to a treaty which may arise for an aggressor State in consequence
which may arise for an aggressor State in consequence of measures taken in conformity with the
Charter of the United Nations with reference to that State’s aggression.
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Article 75
Case of an aggressor State
The provisions of the present Convention are without prejudice to any obligation in relation to a treaty
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of measures taken in conformity with the UN Charter with reference to that State's aggression.
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Article 69 provides for the consequences of the invalidity of a treaty. The invalidity of a treaty is
rooted in the invalidity of the consent of a party to be bound. If it is a bilateral treaty, it will be
void ab initio and its provisions will have no legal force (Article 69(1)).
If acts have been performed in good faith under an invalid treaty, each party may require the
other to establish, as far as possible in their mutual relations, the position that would have
existed if the acts had not been performed, and if acts performed in good faith under an invalid
treaty are not otherwise unlawful, they will not be rendered unlawful by the invalidity of the
treaty (Article 69(2)).
But a party whose fraud, corruption or coercion was the cause of the invalidity cannot benefit
from these provisions (Article 69(3)).
In the case of a multilateral treaty, an invalid consent will normally mean that the treaty will
nevertheless remain valid for the other parties (Article 69(4)).
SECTION 5. CONSEQUENCES OF THE INVALIDITY, TERMINATION OR SUSPENSION OF THE OPERATION
OF A TREATY
Article 69
Consequences of the invalidity of a treaty
1. A treaty the invalidity of which is established under the present Convention is void. The
provisions of a void treaty have no legal force.
2. If acts have nevertheless been performed in reliance on such a treaty:
a) each party may require any other party to establish as far as possible in their mutual
relations the position that would have existed if the acts had not been performed;
b) acts performed in good faith before the invalidity was invoked are not rendered
unlawful by reason only of the invalidity of the treaty.
3. In cases falling under article 49, 50, 51 or 52, paragraph 2 does not apply with respect to the
party to which the fraud, the act of corruption or the coercion is imputable.
4. In the case of the invalidity of a particular State’s consent to be bound by a multilateral treaty,
the foregoing rules apply in the relations between that State and the parties to the treaty.
Depositary, Registration and Publication
The negotiating parties to a multilateral treaty may designate the depositary for that treaty
either in the treaty itself or in some other manner as may be adopted by them.
When a treaty is adopted within the framework of the UN or at a conference convened by the
UN, the treaty normally includes a provision designating the Secretary General as the
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If a multilateral treaty has not been adopted within the framework of an international
organization or at a conference convened by such an organization, it is customary for the treaty
to be deposited with the State that hosted the negotiating conference.
When a treaty is not adopted within the framework of the UN or at a conference convened by
the UN, it is necessary for parties to seek the concurrence of the Secretary General to be the
depositary for the treaty before designating the Secretary General as such.
In general, the Secretary General's policy is to assume depositary functions only for:
i.
Multilateral treaties of worldwide interest adopted by the General Assembly or
concluded by plenipotentiary conferences convened by the appropriate organs of the
UN that are open to wide participation, and
ii.
Regional treaties adopted within the framework of the regional commissions of the UN
that are open to participation by the entire membership of the relevant commissions.
The Secretary General derives authority to act as depositary from
i.
Article 98 of the UN Charter,
ii.
Provisions of the treaties themselves,
iii.
UNGA Resolution 24(1) of February 12, 1946, and
iv.
League of Nations Resolution of April 18, 1946.
Article 98 OF UN CHARTER
The Secretary-General shall act in that capacity in all meetings of the General Assembly, of the Security
Council, of the Economic and Social Council, and of the Trusteeship Council, and shall perform such
other functions as are entrusted to him by these organs. The Secretary-General shall make an annual
report to the General Assembly on the work of the Organization.
The depositary of a treaty is responsible for ensuring the proper execution of all actions relating
to the treaty.
The depositary's duties are international in character, and the depositary is under an obligation
to act impartially in the performance of those duties.
i.
The provisions of the relevant treaty,
ii.
Resolutions of the UNGA and other organs of the UN,
iii.
Customary international law, and
iv.
Article 77 of the VCLT.
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The Secretary General is guided in the performance of depositary functions by
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Article 77
Functions of depositaries
The functions of a depositary, unless otherwise provided in the treaty or agreed by the contracting
States, comprise in particular:
a) keeping custody of the original text of the treaty and of any full powers delivered to the
depositary;
b) preparing certified copies of the original text and preparing any further text of the treaty
in such additional languages as may be required by the treaty and transmitting them to
the parties and to the States entitled to become parties to the treaty;
c) receiving any signatures to the treaty and receiving and keeping custody of any
instruments, notifications and communications relating to it;
d) examining whether the signature or any instrument, notification or communication
relating to the treaty is in due and proper form and, if need be, bringing the matter to the
attention of the State in question;
e) informing the parties and the States entitled to become parties to the treaty of acts,
notifications and communications relating to the treaty;
f) informing the States entitled to become parties to the treaty when the number of
signatures or of instruments of ratification, acceptance, approval or accession required for
the entry into force of the treaty has been received or deposited;
g) registering the treaty with the Secretariat of the United Nations;
h) performing the functions specified in other provisions of the present Convention.
In the event of any difference appearing between a State and the depositary as to the
performance of the latter’s functions, the depositary shall bring the question to the attention of
the signatory States and the contracting States or, where appropriate, of the competent organ of
the international organization concerned.
1.
2.
Under Article 102 of the UN Charter, and Article 80 VCLT, every treaty and every international
agreement entered into by any member of the UN must be registered with the UN Secretariat
and published by it.
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Article 80
Registration and publication of treaties
1. Treaties shall, after their entry into force, be transmitted to the Secretariat of the United
Nations for registration or filing and recording, as the case may be, and for publication.
2. The designation of a depositary shall constitute authorization for it to perform the acts specified
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Article 102 OF UN CHARTER
1. Every treaty and every international agreement entered into by any Member of the United
Nations after the present Charter comes into force shall as soon as possible be registered with
the Secretariat and published by it.
2. No party to any such treaty or international agreement which has not been registered in
accordance with the provisions of paragraph 1 of this Article may invoke that treaty or
agreement before any organ of the United Nations.
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in the preceding paragraph.
No party to any such treaty or international agreement which has not been so registered may
invoke that treaty or agreement before any organ of the UN.
Thus, member states of the UN have a legal obligation to register treaties and international
agreements with the Secretariat, and the Secretariat is mandated to publish registered treaties
and international agreements.
The objective of Article 102 is to ensure that all treaties and international agreements remain in
the public domain and thus assist in eliminating secret diplomacy.
Every treaty or international agreement that is registered or filed and recorded must be
published as soon as possible, in a single series.
Treaties are published in the UN Treaty Series in their authentic languages, followed by
translations in English and French, as required.
Enforcement & Performance of Treaties/Treaties & Domestic Law
As already pointed out, the principle of pacta sunt servanda underwrites the integrity of treaties
as a whole.
A State cannot enter into an international agreement with other States if it is not ready and
willing to perform its obligations there under in good faith.
Neither can it rely on its domestic law to justify the non-performance of its obligations under the
treaty, because international law imposes upon the State the obligation to ensure that its
domestic law is in harmony with its international engagements. Besides, a State cannot plead a
change in government as an excuse for failure to perform its treaty obligations.
Since the treaty is entered into on behalf of and binds the State, even the new government must
ensure the treaty obligations are carried out.
The entry into force of a treaty does not mean it is in force in the ratifying or acceding State,
that is, that it has become part of the Law of that State.
For it to have effect in the domestic law of the State, it must be given such effect in accordance
Although no two constitutions are identical, there are two approaches to how they deal with
treaties, that is, dualism and monism.
1. Discussion of Kenya's Treaty Practice under the old Constitutional Regime.
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with the constitutional procedure on how treaties are dealt with.
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2. Formation of Task Force to Prepare a Position Paper on Treaty Practice under the New
Constitutional Regime in the light of Article 2 (6) thereof.
Termination of Treaties
As already noted, the rule pacta sunt servanda is the fundamental principle of the law of
treaties.
A State cannot release itself from its treaty obligations whenever it feels like it, because this
would seriously erode the sanctity of treaties.
However, few treaties last for ever, and in order to prevent the law from being too rigid, some
provision is made for the termination of treaties.
Article 42(2) of the Vienna Convention, seeking to protect the security of legal relations,
provides that the termination of a treaty, its denunciation or the withdrawal of a party, may
take place only as a result of the application of the provisions of the treaty or of the Convention.
The same rule applies to suspension of the operation of a treaty.
Termination of a treaty occurs when the parties thereto are discharged from further obligations
thereunder.
Denunciation denotes a unilateral act by which a party seeks to terminate its participation in a
treaty.
Lawful denunciation of a bilateral treaty terminates the treaty. Although denunciation is also
used in relation to a multilateral treaty, the better term is withdrawal.
Withdrawal of a party from a multilateral treaty will not normally result in its termination
because, though the withdrawing parties may be discharged from their obligations, the treaty
will continue in full force and operation between the remaining parties.
Termination may occur in one of three ways, namely
i.
pursuant to the provisions of the treaty itself,
ii.
pursuant to the conclusion of a fresh agreement of the parties, and
iii.
by operation of the law.
The first two ways of termination are provided for in Article 54 of the Vienna Convention which
b) At any time by consent of all the parties after consultation with the other contracting
States. If the treaty creates rights for a third State in accordance with Article 36 or an
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a) In conformity with the provisions of the treaty; or
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states that the termination of a treaty or the withdrawal of a party may take place
PUBLIC INTERNATIONAL LAW-GPR 301
obligation has arisen for a third State from the treaty in accordance with Article 37, the
consent of the third State may also be needed.
Article 36
Treaties providing for rights for third States
1. A right arises for a third State from a provision of a treaty if the parties to the treaty intend the
provision to accord that right either to the third State, or to a group of States to which it
belongs, or to all States, and the third State assents thereto. Its assent shall be presumed so long
as the contrary is not indicated, unless the treaty otherwise provides.
2. A State exercising a right in accordance with paragraph 1 shall comply with the conditions for its
exercise provided for in the treaty or established in conformity with the treaty.
Article 37
Revocation or modification of obligations or rights of third States
1. When an obligation has arisen for a third State in conformity with article 35, the obligation may
be revoked or modified only with the consent of the parties to the treaty and of the third State,
unless it is established that they had otherwise agreed.
2. When a right has arisen for a third State in conformity with article 36, the right may not be
revoked or modified by the parties if it is established that the right was intended not to be
revocable or subject to modification without the consent of the third State.
Under Article 55, unless the treaty otherwise provides, a multilateral treaty does not terminate
by reason only of the fact that the number of the parties falls below the number necessary for
its entry into force.
Further, a treaty which contains no provision for denunciation or withdrawal is not subject to
denunciation or withdrawal unless
i.
it is established that the parties intended to admit the possibility of denunciation or
withdrawal; or
ii.
a right of denunciation or withdrawal may be implied by the nature of the treaty (Article
56).
Article 55
Reduction of the parties to a multilateral treaty below the number necessary for its entry into force
Unless the treaty otherwise provides, a multilateral treaty does not terminate by reason only of the fact
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Article 56
Denunciation of or withdrawal from a treaty containing no provision regarding termination,
denunciation or withdrawal
1.
A treaty which contains no provision regarding its termination and which does not provide for
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that the number of the parties falls below the number necessary for its entry into force.
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denunciation or withdrawal is not subject to denunciation or withdrawal unless:
a) It is established that the parties intended to admit the possibility of denunciation or
withdrawal; or
b) A right of denunciation or withdrawal may be implied by the nature of the treaty.
A party shall give not less than twelve months’ notice of its intention to denounce or withdraw
from a treaty under paragraph 1.
2.
A party intending to denounce or withdraw from such a treaty must give not less than twelve
months' notice of its intention.
However, under this Article a right to denunciation or withdrawal can never be implied if the
treaty contains an express provision regarding denunciation, withdrawal or termination.
Since it is now common to include provisions on withdrawal, when a treaty makes no provision
for termination or withdrawal it may be much more difficult for a party wishing to invoke
denunciation or withdrawal.
A party will not be able to withdraw from a treaty transferring territory or establishing a
boundary.
The same may apply in the case of codification treaties which, in many cases, reflect rules of
customary law and so withdrawal might make little or no legal difference.
Other treaties which are unlikely to be capable of withdrawal are treaties of peace and
disarmament, and those establishing permanent regimes (e.g., the Suez Canal).
Besides, most universal human rights treaties do not provide for withdrawal.
Article 59 of the Convention provides for implied termination where parties conclude a similar
treaty on the same subject matter.
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Article 59
Termination or suspension of the operation of a treaty implied by conclusion of a later treaty
1. A treaty shall be considered as terminated if all the parties to it conclude a later treaty relating
to the same subject matter and:
a) it appears from the later treaty or is otherwise established that the parties intended
that the matter should be governed by that treaty; or
b) the provisions of the later treaty are so far incompatible with those of the earlier one
that the two treaties are not capable of being applied at the same time.
2. The earlier treaty shall be considered as only suspended in operation if it appears from the later
treaty or is otherwise established that such was the intention of the parties.
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If the parties to both the earlier and later treaties are identical, they are competent to abrogate
the earlier one, and may include an express provision to this effect in the later treaty.
The same would apply even if the parties to the later treaty are not the same as for the earlier
one, provided they include all the parties to the earlier one.
Article 59(1) provides that if all the parties to the earlier treaty are also parties to the later one,
and the two treaties relate to the same subject matter, the earlier treaty will be terminated if
a) it appears from the later treaty or is otherwise established that the parties intended
that the matter should be governed by that treaty, or
b) the provisions of the later treaty are so incompatible with those of the earlier one that
the two treaties are not capable of being applied at the same time.
Article 59 (2) provides that the earlier treaty will be considered as only suspended in operation
if it appears from the later treaty, or it is otherwise established that such was the intention of
the parties.
The question is therefore one of interpretation of the two treaties to determine what the
parties intended.
Grounds for Termination
Like the violation of any other international obligation, breach of a treaty obligation may entitle
another party to terminate or withdraw from the treaty or suspend its operation.
Article 60 of the Convention lays down rules on breach of treaties and these may be
summarized as follows:-A material breach of a bilateral treaty by one of the parties entitles the
other to invoke the breach as a ground for the termination or suspension of the treaty in whole
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Article 60
Termination or suspension of the operation of a treaty as a consequence of its breach
1. A material breach of a bilateral treaty by one of the parties entitles the other to invoke the
breach as a ground for terminating the treaty or suspending its operation in whole or in part.
2. A material breach of a multilateral treaty by one of the parties entitles:
a) the other parties by unanimous agreement to suspend the operation of the treaty in
whole or in part or to terminate it either:
i.
in the relations between themselves and the defaulting State; or
ii.
as between all the parties;
b) a party specially affected by the breach to invoke it as a ground for suspending the
operation of the treaty in whole or in part in the relations between itself and the
defaulting State;
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or in part.
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c) any party other than the defaulting State to invoke the breach as a ground for
suspending the operation of the treaty in whole or in part with respect to itself if the
treaty is of such a character that a material breach of its provisions by one party
radically changes the position of every party with respect to the further performance of
its obligations under the treaty.
A material breach of a treaty, for the purposes of this article, consists in:
a) A repudiation of the treaty not sanctioned by the present Convention; or
b) The violation of a provision essential to the accomplishment of the object or purpose of
the treaty.
The foregoing paragraphs are without prejudice to any provision in the treaty applicable in the
event of a breach.
Paragraphs 1 to 3 do not apply to provisions relating to the protection of the human person
contained in treaties of a humanitarian character, in particular to provisions prohibiting any
form of reprisals against persons protected by such treaties.
3.
4.
5.
The use of ''invoke" means that a party may not simply declare a treaty at an end because of the
perceived breach.
Subject to such right as it may have to take counter measures, it must seek a peaceful
settlement of the dispute as required by Article 33 of the UN Charter as well as Articles 65 - 68
of the Convention.
To entitle a party to invoke material breach, the breach must be of the treaty itself and not of
another treaty or of rules of general international law.
Nor can a party which is in itself already in breach, and which has prevented the other party
from complying with the treaty, invoke a breach of that other party.
A material breach of a multilateral treaty by one of the parties entitles the other parties by
unanimous agreement to suspend the operation of the treaty in whole or in part or to terminate
it either in relations between themselves and the defaulting State or generally.
A material breach of a multilateral treaty by one of the parties entitles a party specially affected
by the breach to invoke it as a ground for suspending the operation of the treaty as a whole or
in part in relation between itself and the defaulting State.
A material breach of a multilateral treaty by one of the parties entitles any party other than the
defaulting State to invoke the breach as a ground for suspending the operation of the treaty in
its provisions radically changes the position of every party with respect to the performance of its
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obligations under the treaty.
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whole or in part with respect to itself if the treaty is of such a character that a material breach of
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This provision is designed to deal with certain special types of treaty, such as disarmament
treaties, where breach by one party could well undermine the whole treaty regime.
In such a case, the provision of paras. (1) and (2) may not adequately protect the interests of an
individual party, which could not suspend the performance of its own obligations in relation to
the defaulting party without at the same time breaching its obligations to the other parties, yet
if it does not do so, it may be unable to protect itself against the threat resulting, for instance,
from rearming by the defaulting State.
A "material breach" for purposes of the Article consists in a repudiation of the treaty not
sanctioned by the Convention or the violation of a provision essential to the accomplishment of
the object or purpose of the treaty.
An example would be the refusal by a party to the Nuclear Non-Proliferation Treaty
1968/Comprehensive Nuclear Test Ban Treaty 1996 or the Chemical Weapons Convention
1993 to have conduct on its territory of international inspections to verify its compliance with
treaty provisions, the inspection regime being a key means of monitoring the effectiveness of
the treaties.
Article 60(5) makes it clear that paras. (1) to (3) do not apply to breach of provisions in treaties
relating to the protection of the human person and, in particular, provisions prohibiting any
form of reprisals against persons protected by such treaties.
Supervening impossibility of performance may be invoked by a party as a ground for terminating
or withdrawing from a treaty.
If an object which is indispensable for the execution of a treaty disappears permanently or is
destroyed, thereby making the performance of the treaty impossible, a party can invoke this as
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Article 61
Supervening impossibility of performance
1. A party may invoke the impossibility of performing a treaty as a ground for terminating or
withdrawing from it if the impossibility results from the permanent disappearance or
destruction of an object indispensable for the execution of the treaty. If the impossibility is
temporary, it may be invoked only as a ground for suspending the operation of the treaty.
2. Impossibility of performance may not be invoked by a party as a ground for terminating,
withdrawing from or suspending the operation of a treaty if the impossibility is the result of a
breach by that party either of an obligation under the treaty or of any other international
obligation owed to any other party to the treaty.
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a ground for terminating or withdrawing from the treaty, and Article 61 so provides.
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The ILC gave as possible examples of impossibility of performance, the submergence of an
island, the permanent drying up of a river or the destruction of a dam.
If the impossibility is temporary, it is only a ground for the suspension of the operation of the
treaty.
Impossibility of performance may not be invoked by a party if it is the result of a breach by it
either of an obligation under the treaty or of any other international obligation owed to any
other party to the treaty.
Fundamental change of circumstances may justify a party in demanding to be released from the
obligations of a treaty which cannot be abrogated by unilateral notice.
Indeed, a party is not bound to perform a treaty if there has been a fundamental change of
circumstances since the treaty was concluded.
Many writers defend the principle clausala rebus sic stantibus and assert that all treaties are
concluded under the condition of rebus sic stantibus.
The doctrine, in its proper limits, embodies a general principle of law as expressed by the
municipal law doctrine of frustration.
It is in this sense that every treaty implies a condition that if, by an unforeseen change of
circumstances, a treaty obligation should imperil the existence or vital development of one of
the parties, it should have a right to demand to be released from the obligation concerned.
However, the operation of the doctrine is limited because it is the function of the law to enforce
contracts or treaties even if they become burdensome for the party bound by them.
This explains why the doctrine has not been invoked with success even before international
tribunals.
For instance, in the Fisheries Jurisdiction Case (U.K. vs. Iceland) (Jurisdiction) (1974) 1CJ Rep. 3,
Fisheries Jurisdiction Case (U.K. vs. Iceland) (Jurisdiction) (1974) 1CJ Rep. 3,
The ICJ said that Article 62 may in many respects be considered as a codification of existing customary
law on the subject, but held that the dangers to Icelandic interests resulting from new fishing techniques
that would facilitate the increased exploitation of the fishery resources in the seas surrounding Iceland
could not constitute a fundamental change with respect to the lapse or subsistence of the jurisdictional
either party could refer a dispute concerning Iceland's extension of its fishing zone to the ICJ. The Court
stated that the alleged changes in fishing techniques could not affect the obligation to submit to the
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terminated on the basis of rebus sic stantibus was the 1961 Exchange of Notes with the UK by which
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clause in the bilateral agreement between UK and Iceland. The agreement which Iceland sought to have
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Court's jurisdiction as per the agreement.
For a party to rely on rebus sic stantibus, it must show that the change of circumstances has
resulted in a radical transformation of the extent of the obligations still to be performed.
The change must have increased the burden of obligations to be executed to the extent of
rendering the performance something essentially different from that originally undertaken.
See (Gabcikovo-Nagymaros Case) (1997) ICJ Rep. 7,
(Gabcikovo-Nagymaros Case) (1997) ICJ Rep. 7,
The Court rejected Hungary's argument that profound political changes, diminishing economic viability
of a project, progress in environmental knowledge and the development of new norms of international
environmental law constituted a fundamental change of circumstances. It emphasized that the stability
of treaty relations requires that Article 62 be applied only in exceptional cases (para. 104).
Like impossibility of performance, rebus sic stantibus does not give a State party the right,
immediately upon the occurrence of a vital change of circumstances, to declare itself free from
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Article 62
Fundamental change of circumstances
1. A fundamental change of circumstances which has occurred with regard to those existing at the
time of the conclusion of a treaty, and which was not foreseen by the parties, may not be
invoked as a ground for terminating or withdrawing from the treaty unless:
a) the existence of those circumstances constituted an essential basis of the consent of the
parties to be bound by the treaty; and
b) the effect of the change is radically to transform the extent of obligations still to be
performed under the treaty.
2. A fundamental change of circumstances may not be invoked as a ground for terminating or
withdrawing from a treaty:
a) if the treaty establishes a boundary; or
b) if the fundamental change is the result of a breach by the party invoking it either of an
obligation under the treaty or of any other international obligation owed to any other
party to the treaty.
3. If, under the foregoing paragraphs, a party may invoke a fundamental change of circumstances
as a ground for terminating or withdrawing from a treaty it may also invoke the change as a
ground for suspending the operation of the treaty.
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the obligations of the treaty; it only entitles it to claim to be released from them by the other
party or parties to the treaty.
So when a State is of the view that the obligations of a treaty have, through a change o
circumstances, become unbearable, the proper course for it is first to approach the other party
or parties and request for the abrogation of the treaty.
If the parties thus approached refuse to accede to the request - which ought to be coupled with
an offer to submit any disputed issue to judicial determination - then this requesting State may
be justified in declaring that it can no longer consider it self bound by the treaty.
Under Article 62(1) rebus sic stantibus may not be invoked as a ground for terminating or
withdrawing from a treaty unless
a) The existence of those circumstances constituted an essential basis of the consent of
the parties to be bound by the treaty, and
b) The effect of the change is radically to transform the extent of the obligations still to be
performed under the treaty.
Article 62(2) provides for two circumstances in which rebus sic stantibus cannot be invoked as a
ground for terminating or withdrawing from a treaty.
1. The first is where the treaty establishes a boundary. Treaties defining boundaries have a special
status in international law. Boundaries that are established by such agreements have a
permanence that exists independently of the fate of the agreements that set them out. This
principle was affirmed by the ICJ in the Case Concerning Territorial Dispute: Libyan Arab
Janahiriya v. Chad (1994) ICJ Rep. 6.
Libyan Arab Janahiriya v. Chad (1994) ICJ Rep. 6.
After an armed conflict, Libya and Chad agreed to refer a territorial dispute regarding the location of
their mutual border to the ICJ for resolution. A 1955 Treaty of Friendship and Good Neighborliness had
been negotiated between the then newly independent State of Libya and France, as the colonial
administrator of Chad at that time. In the treaty, a border had been set down between the two
countries, but the treaty itself was expressed to be for a period of twenty years. In addition, there was
complete disagreement between the parties as to the principles of international law to be applied to the
administered territory. The fact that the treaty was concluded for a limited period was irrelevant
because treaties setting down borders create demarcations which endure independently of the
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definitively agreed in the 1955 Treaty to which Chad was a party as a successor State to the French
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facts and circumstances of the case to establish the border. The Court held that the border was
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agreement establishing them. The Court said: There is nothing in the 1955 Treaty to indicate that the
boundary agreed was to be provisional or temporary; on the contrary it bears all the hallmarks of
finality. The establishment of this boundary is a fact which from the outset has had a legal life of its own,
independently of the fate of the 1955 Treaty. Once agreed, the boundary stands, for any other approach
would vitiate the fundamental principle of the stability of boundaries, the importance of which has been
repeatedly emphasized by the Court ... A boundary established by treaty thus achieves a permanence
which the treaty itself does not necessarily enjoy. The treaty can cease to be in force without in any way
affecting the continuance of the boundary. In this instance, the parties have not exercised their option
to terminate the Treaty, but whether or not the option is exercised, the boundary remains.
2. The second circumstance is where the fundamental change is the result of a breach by the party
invoking it either of an obligation under the treaty or of any other international obligations
owed to any other party to the treaty. Where a party may successfully invoke the doctrine of
rebus sic stantibus as a ground for termination or withdrawing from a treaty, it may also invoke
it as a ground for suspending the operation of the treaty.
The severance of diplomatic or consular relations between parties to a treaty does not affect the
legal relations established between them by treaty, except in so far as the existence of
diplomatic or consular relations is indispensable for the application of the treaty (Art. 63).
Article 63
Severance of diplomatic or consular relations
The severance of diplomatic or consular relations between parties to a treaty does not affect the legal
relations established between them by the treaty except insofar as the existence of diplomatic or
consular relations are indispensable for the application of the treaty.
The rule applies to both bilateral and multilateral treaties. In fact, the severance of diplomatic
relations may not make a substantial difference since Article 74 provides that the severance or
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conclusion of treaties between those States.
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absence of diplomatic or consular relations between two or more States does not prevent the
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Article 74
Diplomatic and consular relations and the conclusion of treaties
The severance or absence of diplomatic or consular relations between two or more States does not
prevent the conclusion of treaties between those States. The conclusion of a treaty does not in itself
affect the situation in regard to diplomatic or consular relations.
The conclusion of a treaty does not, in itself, affect the situation in regard to diplomatic or
consular relations.
Amendment
Amendment of treaties is a subject of great practical importance, especially with respect to
multilateral treaties, and always need to be addressed at the time of drafting the treaty.
Amending a bilateral treaty is not technically difficult; amending a multilateral treaty can raise
complex technical and political problems, especially if the treaty is of worldwide interest and of
unlimited duration.
This gives rise to three basic problems.
i.
First, the process of agreeing on amendments and then bringing them into force can be
as difficult as negotiating and bringing into force the original treaty, and sometimes
even more troublesome.
ii.
Secondly, because of their long life, multilateral treaties are more likely to need
amendment.
iii.
Thirdly, because of an inadequate amendment provision, or lack thereof, in the original
treaty, most amendments do not bind all the parties.
Article 39 of the VCLT states the general rule regarding the amendment of treaties, whether
bilateral or multilateral: a treaty may be amended by "agreement" between the parties.
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an agreement except insofar as the treaty may otherwise provide.
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PART IV.
AMENDMENT AND MODIFICATION OF TREATIES
Article 39
General rule regarding the amendment of treaties
A treaty may be amended by agreement between the parties. The rules laid down in Part II apply to such
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The use of this word recognizes that it is perfectly possible to amend a treaty by an agreement
which does not itself constitute a treaty, or, possibly, by an oral agreement whose legal force is
preserved by Article 3.
Similarly, a treaty can also be effectively amended by a subsequent agreement between the
parties regarding the interpretation or application of the treaty (Article 31(3)(a)).
4.
SECTION 3. INTERPRETATION OF TREATIES
Article 31
General rule of interpretation
A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given
to the terms of the treaty in their context and in the light of its object and purpose.
The context for the purpose of the interpretation of a treaty shall comprise, in addition to the
text, including its preamble and annexes:
a) any agreement relating to the treaty which was made between all the parties in
connection with the conclusion of the treaty;
b) any instrument which was made by one or more parties in connection with the
conclusion of the treaty and accepted by the other parties as an instrument related to
the treaty.
There shall be taken into account, together with the context:
a) any subsequent agreement between the parties regarding the interpretation of the
treaty or the application of its provisions;
b) any subsequent practice in the application of the treaty which establishes the
agreement of the parties regarding its interpretation;
c) any relevant rules of international law applicable in the relations between the parties.
A special meaning shall be given to a term if it is established that the parties so intended.
Article 39 provides that the rules laid down in Part II of the Convention apply to an agreement
1.
2.
3.
to amend a treaty "except in so far as the treaty may otherwise provide."
This is recognition of the fact that many multilateral treaties now have built-in amendment
mechanisms.
Bilateral treaties can be amended more easily than multilateral. The parties can always agree to
an amendment, the only question being the form in which it is to be expressed. This could, for
instance, be by exchange of notes confirming the amendment.
With respect to multilateral treaties, States have devised methods of amendment which avoid
Most multilateral treaties now have an effective and comprehensive mechanism for their
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amendment. Cf. Article 108 of the UN Charter.
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amendment by means of another treaty.
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CHAPTER XVIII
AMENDMENTS
Article 108
Amendments to the present Charter shall come into force for all Members of the United Nations when
they have been adopted by a vote of two thirds of the members of the General Assembly and ratified in
accordance with their respective constitutional processes by two thirds of the Members of the United
Nations, including all the permanent members of the Security Council.
Where there is no built-in amendment procedure or where the procedure is either not
comprehensive or does not cover all eventualities, Articles 40 and 41 of the VCLT provide the
fall-back rules.
2.
3.
4.
5.
1.
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2.
Article 41
Agreements to modify multilateral treaties between certain of the parties only
Two or more of the parties to a multilateral treaty may conclude an agreement to modify
the treaty as between themselves alone if:
a) the possibility of such a modification is provided for by the treaty; or
b) the modification in question is not prohibited by the treaty and:
i.
does not affect the enjoyment by the other parties of their rights under the
treaty or the performance of their obligations;
ii.
does not relate to a provision, derogation from which is incompatible with
the effective execution of the object and purpose of the treaty as a whole.
Unless in a case falling under paragraph 1 (a) the treaty otherwise provides, the parties in
question shall notify the other parties of their intention to conclude the agreement and of
the modification to the treaty for which it provides.
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1.
Article 40
Amendment of multilateral treaties
Unless the treaty otherwise provides, the amendment of multilateral treaties shall be
governed by the following paragraphs.
Any proposal to amend a multilateral treaty as between all the parties must be notified to
all the contracting States, each one of which shall have the right to take part in:
a) the decision as to the action to be taken in regard to such proposal;
b) the negotiation and conclusion of any agreement for the amendment of the treaty.
Every State entitled to become a party to the treaty shall also be entitled to become a party
to the treaty as amended.
The amending agreement does not bind any State already a party to the treaty which does
not become a party to the amending agreement; article 30, paragraph 4 (b), applies in
relation to such State.
Any State which becomes a party to the treaty after the entry into force of the amending
agreement shall, failing an expression of a different intention by that State:
a) be considered as a party to the treaty as amended; and
b) be considered as a party to the un amended treaty in relation to any party to the
treaty not bound by the amending agreement.
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Any proposal to amend the treaty as between the parties must be notified to all the contracting
States.
Each of them has the right to participate in the decision on the action that should be taken and
in the negotiation and conclusion of any amendment treaty.
Every State entitled to become a party to the treaty-is also entitled to become a party to the
treaty as amended.
This would apply to a State which had taken part in the conclusion of the treaty, but had not yet
expressed its consent to be bound.
An amending agreement does not bind a party to a treaty which does not become a party to the
amending agreement.
As between such a party and a party to the amending agreement, only the un amended treaty
applies.
Unless a State expresses a different intention, it is considered to be a party to the treaty as
amended, and in relation to any party to the treaty which is not bound by the amending
agreement, it is regarded as a party to the un-amended treaty.
Article 41 deals with instances where some of the parties to a treaty make an agreement for the
purpose of modifying the treaty only as between themselves.
Such an inter se agreement is permissible if the possibility of such a modification is provided in
the treaty.
If the modification is not prohibited by the treaty, an inter se agreement will be permissible if
i.
it does not prejudice the rights or add to the burdens of the other parties, and
ii.
it does not relate to a provision derogation from which would be incompatible with the
effective execution of the object and purpose of the treaty as a whole. Unless the
possibility of an inter se agreement is provided for in the treaty, the prospective patties
thereto must notify the other parties of their intention and of the modification.
Sometimes, it may be necessary to adopt amendments to a multilateral treaty before it has
entered into force. The classic example is the 1994 Agreement Relating to the Implementation
of Part XI of the 1982 UN Convention on the Law of the Sea.
mining of the deep seabed had become unacceptable to them.
The Convention could therefore have entered into force with the majority of the parties being
developing States, a situation that would have meant their having to pay the costs of the
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Industrialized States would not adhere to the Convention because the provisions in Part XI on
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Convention's elaborate institutional framework, and denied the Convention its universal
character.
NB. Distinction between treaties which amend and treaties which supplement. The right to
become a party to a supplementary treaty is not necessarily limited to parties to the earlier
treaty.
The supplementary treaty, although linked to the earlier treaty, may well stand alone and does
not need the parties to it to be parties to the earlier treaty in order to be effective.
For instance, the 1967 Protocol relating to the Status of Refugees does not amend the 1951 UN
Convention on Refugees, but requires the parties to apply the substantive provisions of the
Convention as broadened by the Protocol, thereby opening the Protocol to all States.
Duration
The duration of a treaty depends partly on its object and purpose and partly on express
intention of the parties.
Many bilateral treaties make no provision for duration and their subject matter is such that they
could remain in force indefinitely.
However, since it is possible that one of the parties may want to terminate it some time, it is
usual for them to include a termination clause.
Most multilateral treaties of unlimited duration will allow a party an unconditional right to
withdraw, whereas others may place certain limitations on when a party may withdraw, yet
others provide for duration for a fixed period with the possibility of extension by agreement.
Multilateral treaties that are constituent instruments of international organizations will normally
be for an indefinite period.
PRACTICE QUESTION
Flecha and Tuphs are two sovereign independent states which in 2995 concluded a treaty to facilitate
the joint construction of hydro-electric dams on the Lauterpacht River, which marks the common
boundary between the two states, in order to meet the present and future energy requirements to
The construction works commenced in January 1996 and were estimated to last for the next five years
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treaty did not contain any provision regarding termination.
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facilitate the rapid industrialization for the mutual socio-economic benefit of the two states. The
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.In January 1997 Flecha faced with lots of opposition from local and international non-governmental
organizations concerned about the environmental impacts of the project suspended the works.Flecha
also argued that the suspension of the works was a matter of necessity for the State.
However Tuphs rejected Flecha’s grounds for suspension of the works and unilaterally proceeded with
the execution of the works and ended up diverting the waters of the Lauterpacht River into a by-pass
canal in its own territory.
Flecha then claimed the right to terminate the Treaty arguing that Tuphs had violated the treaty by
undertaking unilateral works, culminating in the diversion of the Lauterpacht River.Flecha argued
further that the subsequent progress in the knowledge and awareness of the environmental
consequences of the project, its reduced economic viability, coupled with the new government policy
of self reliance, cumulatively constituted such a fundamental change of circumstances as to radically
transform the nature and extent of the obligation still to be performed to accomplish the project.
On learning that the Republic of Flecha’s declaration ,filed under the Statute of the ICJ accepting the
courts jurisdiction has not been withdrawn,the Republic of Tuphs did in January 2000 filled suit in the
ICJ at the Hague seeking inter alia
a) A declaration that the Republic of Flecha’s actions aforesaid violate international law and
b) A determination that the Republic of Flecha is liable for the losses incurred by the Republic of
Tuphs and order payment of reparation
The Republic of Flecha contests the claim on the grounds that its actions did not invoke its
international responsibility as alleged or at all as they were legitimate and justified under
international law.
Both Flecha and Tuphs are parties to the 1969 Vienna Convention on the Law of Treaties and apart
from the above referred to treaty neither country is a party or signatory to any either treaty relevant
Prepare an articulate opinion with the support of relevant authorities, analyzing the legal issues
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Being a junior member of the ICJ Bench your opinion is heard first.
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to this case.
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involved and indicating how the Court should decide the Case.
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LECTURE 10: 22ND MARCH 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 8: TERRITORIAL JURISDICTION
INTRODUCTION
THE CONCEPT OF TERRITORY
International law is based on the concept of the state.
The state in turn lies upon the foundation of sovereignty/territory which expresses internally the
supremacy of the governmental institution and expressed externally as a legal person.
Sovereignty is founded upon the fact of territory. Without territory a legal person cannot be a
state.
Territory is the basic characteristic of a state and the one most accepted and understood.
Territory is the foundation of a states factual existence and the basis or the exercise of its
powers.
There must be a physical area that is claimed by a state in it is territory. It must occupy the area.
The state must exercise its jurisdiction within a defined territory.
Indeed the importance of territory to related concepts such as territory integrity and
jurisdiction is fundamental. Kenya must exercise its power within its territory.
For instance a change in ownership of a particular territory involves also a change in the
sovereignty, legal authority governing the area.
Since the rights of a sovereign state extends only to its territory, the state may and does exercise
all those rights to which it is entitled as a subject of international law over its territory. Kenya
can only exercise its jurisdiction in its territory.
Among such rights are the rights to make, adjudicate and enforce its municipal laws. Kenyan
laws as a general rule do not have extra territorial jurisdiction. The laws are only applicable and
are binding only in Kenya.
However, other states may have concurrent jurisdiction based on extra-territorial jurisdiction
principles.
national rivers, territorial sea appertaining to the land and the sea bed and subsoil of the
territorial sea and the airspace over the land and the territorial sea.
12 nautical miles of the lowest water mark.
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The territory of a state comprises all land areas including subterranean areas, waters including
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12 mm
TS
Territorial sovereignty may be exercised over various geographical features analogous to land
territory including islands, islets, rocks and reefs.
Territory may be terra nullius consisting of the same subject matter i.e. land internal waters
legally susceptible to acquisition by state but not yet placed under territorial sovereignty.
Terra nullius is ownerless territory not under any state.
See ICJ Opinion on Western Sahara –The ICJ said that the Western Sahara was not Terra Nullius
because the Sarawis were there from the beginning.
Case
The ICJ Opinion on Western Sahara
The Res Communis consisting of the high seas and the outer space is not capable of being placed
under any state sovereignty. (Belongs to all in general and no one in particular)
Res Communis is governed under the regime of the common heritage of human kind. (Analyse)
THE ACQUISITION OF TERRITORY
Customary international law distinguishes several modes by which sovereignty can be acquired
of a territory. The five modes by which territory has traditionally been said to have been
acquired are
1. Occupation
2. Prescription
3. Accretion
4. Cession
5. Annexation
These modes are not however exclusive or exhaustive because in practice it is unlikely that any
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single mode would be evident in isolation.
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1. OCCUPATION
It is an original mode of acquisition whereby a state acquires sovereignty over a terra nullius
whether newly discovered or abandoned by the former sovereign.
Territory inhabited by tribes or people having a social and political organization cannot be of the
nature of terra nullius. For instance Western Sahara.
In determining whether or not an occupation has taken place in accordance with International
Law, the principle of effectiveness is applied i.e. territory is occupied when it is placed under
effective control a relative concept varying according to the nature of the territory concerned.
See In the legal status of Eastern Green Land Case
CASE
The Legal Status of Eastern Green Land Case
The Permanent Court of International Justice stated that for occupation to be effective as a basis of a
claim to sovereignty over territory two elements must be shown to exist namely:
1) The intention and will to act as a sovereign (Animus Possidendi)
2) Actual exercise or display of authority
The Government of Norway having by proclamation declared part of Eastern Greenland to be under
Norwegian sovereignty, the Government of Denmark sought a decision that this proceeding was invalid,
the whole of Greenland being already under Danish sovereignty, as Norway had herself recognized,
notably in an oral statement by the Minister of Foreign Affairs, Nils Claus Ihlen, to the Danish Minister
on 22 July 1919 to the effect ‘that the Norwegian Government would not make any difficulties in the
settlement of th[e] question’ of the extension of Danish political and economic interests over all
Greenland.
The Court, which assumed jurisdiction under the Optional Clause declarations by the parties, held (12 to
2) that it was ‘beyond all dispute that a reply of this nature given by the Minister of Foreign Affairs on
behalf of his Government in response to a request by the diplomatic representative of a foreign Power,
in regard to a question falling within his province, is binding upon the country to which the Minister
sovereignty over Greenland as a whole and, a fortiori to refrain from occupying a part of Greenland’: at
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71 and 73.
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belongs’, and in consequence that Norway was ‘under an obligation to refrain from contesting Danish
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The Court also stressed the relative nature of the test of establishing title to territory by means of
occupation, noting that ‘in many cases the tribunal [deciding the question of territorial sovereignty] has
been satisfied with very little in the way of the actual exercise of sovereign rights, provided that the
other State could not make out a superior claim. This is particularly true in the case of claims to
sovereignty over areas in thinly populated or unsettled countries’: at 46. .
The requirement of the animus possidendi is important in three respects
a) The activity must be that of the state or its authorized agent and not that of a mere individual
b) The activity must not be exercised by the concept of any other state.
c) The activity taken as a whole must have no other explanation but the assumption of pre existing
sovereignty
In other words all the fact must evidence nothing less than a permanent intention and will to
assume and manifest control over the territory.
There must be an intentional display of power and authority over the territory by the exercise of
jurisdiction and state functions on a continuous and peaceful basis.
The requirement of actual exercise or continued display of authority may be satisfied by
concrete evidence of state activity consistent with sovereignty such as the taking of legislative or
executive measure affecting the territory concerned fixing boundaries or concluding agreements
with other states recognizing the claimant states sovereignty over the territory.
A mere act of discovery by one state without more is not sufficient to confer that title by
occupation.
Such incomplete appropriation must give way to a continuous and peaceful display of authority
by another state.
See the case of The Island of Palmas Case
CASE
The Island of Palmas Case
The sole arbitrator Max Huber, found that the Dutch had a better title to the island having peacefully
arose thereby supplanting the Spanish claim as the sovereign.
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In 1906 a dispute arose between the US and the Nether lands concerning sovereignty over the island of
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and continuously displayed state authority over the island from at least 1700-1906 when this dispute
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palmers an island in the Philippines archipelago. The US believed The Island of Palmas to be included in
the “Archipelago Known as Philippines Islands” ceded to the US at the conclusion of the Spanish
American War by the 1898 Treaty of Peace between the US and Spain. The Netherlands however
considered the Islands of Palmas as forming part of their territory in the East Indies actually under Dutch
control.
The dispute was referred to the Permanent Court of Arbitration at the Hague for settlement by a single
arbitrator who was to determine whether the island s of Palmers in its entirety forms a part of the
territory belonging to the USA or of the Netherlands territory.”
The arbitrator held that the islands of Palmas formed in its entirety a part of the Netherlands territory
because even if Spain did originally have sovereignty over the island the Dutch had administered it since
the early 18th century and there was no evidence to establish any acts of display sovereignty of Spain or
another power such as counter balance or annihilate manifestations of Netherlands sovereignty.
See also Minquiers and Ecrehos Case (1953) (UK vs France ICJ 1950)
CASE
Minquiers and Ecrehos Case (1953) (UK vs France ICJ 1950)
The Minquiers and Ecrehos groups of islets and rocks lie between the British Channel Island of Jersey
and the coast of France. Both the United Kingdom and France claimed sovereignty over the two groups,
on the basis of original title going back to the eleventh century and an effective display of sovereignty
subsequently. By a Special Agreement in of 29 December 1950 (118 U.N.T.S. 149), the United Kingdom
and France submitted to the I.C.J. the question whether the sovereignty over the islets and rocks
(insofar as they were capable of appropriation) of the Minquiers and Ecrehos groups respectively
belonged to the United Kingdom or to France.
On 17 November 1953, the Court held (unanimously) that the evidence prior to the nineteenth century
was for the most part inconclusive or ambiguous as regards sovereignty, but particular probative value
legislation; that, as regards the Ecrehos group, it was at the beginning of the thirteenth century
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considered and treated as an integral part of the fief of the Channel Islands which were held by the King
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attached to the acts which related to the exercise of jurisdiction and local administration and to
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of England, and continued to be under the dominion of that King, who in the beginning of the
fourteenth century exercised jurisdiction in respect thereto, while during the nineteenth century and in
the twentieth century the British authorities had exercised State functions in respect of the group;
France, on the other hand, had not produced evidence showing that it had any valid title to the group;
that, as regards the Minquiers group, it was in the beginning of the seventeenth century treated as a
part of the fief of Normont in Jersey and the British authorities during a considerable part of the
nineteenth century and in the twentieth century had exercised State functions in respect of the group,
whereas France had not established any valid title to the group; and that accordingly the sovereignty
over the Minquiers and Ecrehos groups belonged to the United Kingdom.
However, its decision was based primarily on relatively recent acts relating to the exercise of jurisdiction
and local administration as well as the nature of legislative enactments referable to the territory in
question. And upon these grounds, British sovereignty was upheld. The sovereign acts of the United
Kingdom relating to the islets far outweighed any such activities by the French authorities and
accordingly the claims of the latter were dismissed.
As in other cases, judgment was given not on the basis of clearly defined categories of occupation or
prescription, but rather in the light of the balance of competing state activities.
Related to the issues of continuous display of authority is the question of the date at which
sovereignty comes to be assessed.
This critical date is the date beyond which further evidence of the exercise of sovereign
authority will not be allowed.
This judicial technique is important for two reasons
1. It establishes a point beyond which the parties will not be called upon to provide evidence of
authority. Particularly in the case of uninhabited or sparsely inhabited territories it would make
little sense to require that the display of authority is constantly in evidence. Territory A nomadic
or very few, and keep on moving up and down.
circumstances of acquisition rather than the display authority thereafter the critical date will be
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important in determining which factors are to be taken into account by the court or tribunal.
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2. In the case of disputed territories, where the dispute arises in respect of the initial
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A state may ratify an act by one of its nationals, purporting to appropriate territory on its behalf.
The activities of chartered companies and corporations to which powers of acquisition and
government may have been delegated by the state will also be regarded as state activity in
relation to the acquisition of territory.
2. PRESCRIPTION
Prescription like occupation it is based on effective control over territory but whereas
occupation is acquisition of terra nullius, prescription is the acquisition of title/territory which
belongs to another state.
According to Ian Brownlie, the essence of prescription is the removal of defects in a putative
title arising from usurpation of another’s sovereignty by the consent and acquiescence by the
former sovereign.
There are four requirements for acquisitive prescription.
i.
Possession must be exercised a titre de soverain (title of the sovereign). There must be
a display of state authority and the absence of any recognition of sovereignty in another
state.
ii.
Effective control necessary to establish title by prescription must be accompanied by
acquiescence in the part of the former or losing sovereign. Consequently protests of
other acts or statements which demonstrate a lack of acquiescence may prevent
acquisition of title by prescription. See the Chamizal Arbitration (US vs. Mexico)
CASE
Chamizal Arbitration (US vs. Mexico)
In this case the US laid claim to a 600 hectares tract of the Mexican territory called Chamizal Tract which
had become joined to US territory by the movement of Rio Grande River southwards (The river makes
the international boundary between the US and Mexico) inter alia on the ground of uninterrupted
possession.
The claim failed because Mexico had made a number of protests to the US and indeed as a result of the
protest a convention had been signed in an attempt to settle the rights of the two nations to the
Therefore in the opinion of the Arbitral Commissioners diplomatic protest by Mexico prevented title in
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the favour of the US.
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changes brought out by the action of waters of the Rio Grande.
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iii.
The possession must be public. If there is to be acquiescence then there must be
publicity.
iv.
Finally the possession must be persistent-The effective control necessary to establish
title by prescription must last for a longer period of time than the effective control
which is necessary in cases of occupation. The length of time required is a matter of fact
depending on the particular case because there is no fixed period. See the case of
Kasikili /Sedudu Island Case (Botswana vs Namibia) [1999] ICJ Rep 1045
CASE
Kasikili /Sedudu Island Case (Botswana vs Namibia) [1999] ICJ Rep 1045
Facts
On May 17th 1996 Botswana and Namibia jointly filed a submission to the International Court of Justice
requesting the Court’s settlement of a boundary dispute around Kasikili/Sedudu Island.
Accompanying this request, Botswana and Namibia jointly submitted the text of a Special Agreement
signed on February 15th, 1996 referencing the Anglo-German Treaty of July 1890. This treaty established
an agreement between the colonial powers of Great Britain and Germany and their respective spheres
of influence over the two African nations. On these grounds and the principles of international law, both
parties requested “the boundary between Namibia and Botswana around Kasikili/Sedudu Island and the
legal status of the island.”The Court ruled by eleven votes to four, that the boundary follows the Chobe
River around the island and that the island itself forms part of the territory of Botswana.
The plaintiff, the nation of Botswana, argued that the island should be considered its territory unless it
could be proven that the main channel passes through the south region of the island, and therefore falls
within the sovereignty of Namibia. Botswana held that the north and west channels of the Chobe River
constitute the “main channel”, and in accordance with the provisions of the Anglo-German Agreement
of 1890, establish the boundary between the two nations. Accordingly, Kasikili/Sedudu Island falls
exclusively within the sovereignty of Botswana.
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Questions
1. Where exactly is the main channel of the Chobe located geographically in relation to
Kasikili/Sedudu Island?
2. How is the “main channel” defined and observed in relation to both nations, Botswana and
Namibia?
3. What exactly is the dividing line between the colonial spheres of influences [established by the
provisions of the Anglo-German Agreement of 1890], and why is this specific division important?
4. To what extend had Namibia “officially” occupied and exercised sovereignty over
Kasikili/Sedudu Island?
5. Is the historical occupation of the island important? If physical characteristics of the land or
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The defendant, Namibia, claimed that the main channel of the Chobe River indeed passes through the
south of the island and that “Namibia and its predecessors had occupied, used, and exercised sovereign
jurisdiction over Kasikili Island [with the knowledge and acquiescence of Botswana] since at least 1890.”
As such, Kasikili/Sedudu Island is a territory governed by the sovereignty of Namibia.
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water have shifted over time, should old maps be considered, as legitimate geographic
references?
6. Is navigability a legitimate criteria to be used for identifying and delineating the path of the
Chobe River’s “main” channel?
Decision
1. On December 13th, 1999 the Court delivered its official judgment. The Court held, with eleven
votes to four, that “the boundary between Namibia and Botswana around Kasikili/Sedudu Island
followed the line of deepest soundings in the northern channel of the Chobe and that the island
forms part of the territory of Botswana.” The Court also ruled that while Namibia had
historically occupied the island, the State functions in which it participated during seasonal
occupation did not constitute ownership.
2. The 1890 Treaty was used as important historical context for the definition of “thalweg”, or
main channel, which maintained a legally defined association with navigability. The Court upheld
the definition of thalweg as “the line of deepest water along the length of a river
channel…characterized by two and a smooth bed”. The Court asserted that it could not draw
conclusions from the cartographic material with the absence of any map officially reflecting the
intentions of the parties to the 1890 Treaty, in light of the “uncertainty and inconsistency of
maps.” Based on this criteria, the Court also ruled to uphold the 1985 conclusion of the South
African Department of Water Affairs, “the average depth of the thalweg of the North channel is
greater than the southern channel…the main channel of the Chobe passes Kasikili/Sedudu Island
to the north of it.” The Court added unanimously that, "in the two channels around
Kasikili/Sedudu Island, the nationals of and vessels flying the flags of, the Republic of Botswana
and the Republic of Namibia shall enjoy equal national treatment.”
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Conclusion
The ability of the ICJ to resolve this dispute is significant primarily because it resolved a long-standing
border dispute between the two African nations of Botswana and Namibia. This case is also important
because bridges the gap between law and science and demonstrates the extent to which great difficulty
exists in reconciling the two in a modern context. Of particular interest here is the fact that in addition
to the ten lawyers, six scientists also participated in court proceedings to resolve this dispute. This was a
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Principles
1. In order to appropriately determine the navigability of a water channel, inter alia, depth and
width are the most important measures, which must be considered. These measures are
necessary to compute volume capacity and the primary path of water flow. In this context, a
water channel may be used in determining the boundary between two states.
2. Occupation of a territory, á titre de souverain does not constitute legal ownership. In this
case, although Namibia used the island [the fertile Caprivi strip] for seasonal agriculture
purposes, “its functions of State authority were ultimately on behalf of Caprivi authorities.”The Occupation must be persistent
3. As determined by Frontier Dispute (Burkina Faso v. Republic of Mali) ICJ Reports 1983, the
evidentiary value of maps “constitutes information which varies from case to case; of
themselves, and by virtue solely of their existence,they cannot constitute a territorial title
endowed by international law with intrinsic legal force for the purpose of establishing territorial
rights.”
4. The rule of equitable utilization of watercourses and cartography as well established principles
of International Law.
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necessary means of creating balance between historical precedents and the legal strain of this
procedure on a scientist’s logical rationale. This case also revealed that in essence the dispute centered
around both parties’ desire to procure political control and economic benefit from the rich natural
resources and potential tourist lure of Kasikili/Sedudu’s naturally occurring productive abundance.
3. ACCRETION
Accretion occurs where new territory is added mainly through natural causes to territory
already under the sovereignty of the acquiring state.
No formal act or assertion of title is necessary since a state has the exclusive right of sovereignty
over any additions of silting or other deposits or resulting from the formation of islands within
its territorial waters.
It is immaterial whether the process of accretion has been gradual or imperceptible/unnoticable
or whether it has been produced by a sudden or abrupt transfer of soil provided that this has
become embedded and it is not in any event identifiable as originating from another location.
Accretion can be of significance where a state boundary follows the course of a river. River
between Tanzania and Mozambique (Thalweg) Where a boundary river under goes a sudden
change of course (Avulsion) this will not change a boundary line. It will remain a centre line of
the former boundary claimed.
See Chamizal Arbitration (Rio Grande River)
CASE
Chamizal Arbitration (Rio Grande River)
The question arose which state has title to the tract of land between the old and new river bed.
The boundary commission held that the part of the tract that had occurred by accretion belonged to the
US whereas the part of land that resulted from the floods remained with Mexico.
(River between Mexico and US Rio Grande What was part of Mexican soil remained its soil despite US
claiming the soil.)
This is the transfer of territory usually by treaty from one state to another the treaty forming the
legal basis of sovereignty. (Kenya and Sudan have not agreed on that boundary.)
The treaty is the legal basis of sovereignty.
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4. CESSION
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Cession rests on the principle that the right of transferring its territory is a fundamental
attribute of the sovereignty of a state.
It may be either gratuitous or for some consideration as for instance the sale of Alaska by Russia
to the US in 1867 and may be voluntary or compulsory as a result of a war conducted
successfully by the state to which the territory is to be ceded.
A cession by treaty is void where the conclusion of the treaty has been procured by the threat or
use of force contrary to the provisions of the UN Charter.
For cession to be valid there must be sufficient indication of an intention of transfer of
sovereignty from one state to another.
The receiving state takes all sovereign rights and any limitations pertaining to the territory
ceded.
Cession is an example of a derivative title.
If there were effects in the states title the purported cession from the previous sovereign cannot
cure the effects.
See In the Island of Palmas Case
CASE
Island of Palmas Case
The US claimed that by the 1898 treaty it acquired title to the Island of Palmas from Spain. However, the
arbitrator found that at the time of the purported transfer of the island in 1898 sovereignty over the
island lay with the Netherlands and not with Spain. Spain could therefore not transfer more rights than
she herself possessed. Hence, since Spain had no title to the island in 1898 the US would not acquire
title from Spain.
5. ANNEXATION
Annexation is the forcible acquisition of territory by one state at the expense of another.
In contrast to the other methods to acquire territorial sovereignty the element of force applies a
decisive role.
Under traditional international law conquest was recognized as a means of acquiring territory
even in the absence of a treaty of cession, but the acquisition of territory by conquest was not
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lawful until hostilities have come to an end.
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Therefore in the absence of a peace treaty evidence was necessary that all resistance by the
enemy state and its allies had ceased so that they were no longer forces in the field to free the
occupied territory from the control of the conquering state.
An annexation can only be said to have taken place when not only the territory in question has
been occupied but also the intention to appropriate the territory permanently has been shown.
Intention expressed by (corpus et animus).
In other words even when a state has been completely subjugated there will be no transfer of
sovereignty in the absence of an intention.
For instance in 1945 the Victorious Allies expressly disclaimed the intention of annexing
Germany although they had occupied all German territory and defeated her Axis allies.
Annexation can take place in two ways
1. Unilateral declaration after the conquest of the territory in question and a final defeat of
adversary.
If either element is missing there has been no annexation. With a declaration of
annexation a state announces its intention of acquiring the territorial sovereignty of the
area in question.
2. By treaty under compulsion whereby the ceding state is either forced to sign a peace treaty
after a military retreat or persuaded to agree by non belligerent means.
The legality of the territorial acquisition is to be found in the treaty itself
Whereas acquisition of territory by conquest might have been acceptable during the period of
no legal restriction on the right of a state to wage war in which contemporary international law
restricts the ability of the state to acquire territory by conquest by placing limitation to the use
of force.
If the use of force is illegal then according to principle ex injuria jus non oritur legal title can
never be acquired by forcible means. Because:
1. The first blow to the acquisition by use of force to the acquisition of title to territory was dealt
with by the US Secretary of State Stimson in January 1932 when he announced that the US
2. The following year of the Assembly of the League of Nations adopted a resolution stating that ,
“ it is incumbent upon the members of the league of nations no to recognize any situation, treaty
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up of the puppet state of Manchukuo.
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would not recognize a Japanese invention of Manchuria which was part of China and the setting
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or agreement which may be brought about by means contrary to the covenant of the league of
nations or to the ‘Pact of Paris.” i.e. The 1928 Kellog – Briand Pact which prohibited war as a
means to achieve political aims
3. Besides Article 2 (3&4) of the UN Charter calls upon member states to settle their
“international disputes by peaceful means” and “to refrain in their International relations form
the threat of use of force against territorial integrity or political independence of any state.”
Accordingly not only war but also the use of false in any form is to be regarded as internationally
wrongful act from which in consequence no rights may be derived.
4. Besides a number of UN Gen Assembly resolutions emphasized this point e.g
i.
For instance, in 1970 the UN General Assembly adopted Resolution 2625 (XXV) OF OCTOBER
24TH 1970- The Declaration of Principles of International Law Concerning Friendly Relations
and Corporations Among State in Accordance with the Charter of the UN in which it declared
that it was a basic principle of international law that no territorial acquisition resulting from the
threat of use of force shall be recognized as legal.
ii.
Similarly following the invasion of Kuwait by Iraqi armed force on August 2nd 1990 the Iraqi
government announcement of its intention to annex Kuwait in orders to establish a
“comprehensive and eternal merger” between the two states. The UN security council adopted
Resolution 662 of Aug 9th 1990 in which it unanimously declared the purported annexation of
Kuwait to be null and void and called upon states an institutions not to recognize it and to
refrain from any action that might be interpreted as indirect recognition of annexation.
iii.
Further, Article 52 of the 1969 Vienna convention of the law of treaties state that a treaty is
void if its conclusion has been procured by the threat of the use of force in violation of the
principles of international law embodied in the charter of the UN and does reject the validity of
even a treaty based annexation.
Contemporary rules prohibiting acquisition of territory by conquest or by use of force are
concerned only with International wars and not with internal conflicts.
No breach of International Law is therefore committed when part of a state inhabitant succeeds
in setting up a new stage by winning a war of succession or if the succession occurs with the
1. Has Russia annexed Crimea?
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QUESTION
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consent of the government in power as happened in the case of Eritrea in 1993.
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2. How did Kenya acquire the legal title of the country called Kenya?
3. The Treaty signed by the Colonial Administrators and the Maasai’s is it valid?
ACQUISITION OF TERRITORY BY NEWLY EMERGED STATES.
The acquisition of territory by newly emerged states such as the de-colonized dependencies or
the emancipated trust territories possess a sui generis case because under classical
international law until a new state is created there is no legal person in existence that is
competent to hold title.
Jurists have suggested two basic modes of acquisition of territory by newly emerged states
1. By constitutional means through agreement with the former controlling administration
in an orderly devolution of power.
2. Through non-constitutional means usually by force against the will of the previous of
sovereign.
The granting of independence according other constitutional provisions of the former power
may be achieved either by agreement between the former power and the new entity or by an
internal piece of legislation by the previous sovereign.
In such cases there is devolution of sovereignty from one power to another and the title to the
territory passes from the previous territory to the new administration in a conscious act of
transference.(The 1963 Constitution was an ordinance in the UK parliament).
Different considerations arise where the new entity acquires title through means contrary to
previous authority e.g. through secession or revolution
The principle of self determination may also be relevant and considered. If the new entity
conforms to the legal criteria of state hood other states will have to make a decision as to
whether or not to recognize the new states or accept the legal consequences of this new status.
THE UTI POSSIDENTIS JURIS PRINCIPLE
The principle of Uti Possidentis Juris was first developed among the Spanish colonies of Spanish
America provides that the old colonial boundaries will be recognized as the borders of the newly
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independent ex colonial states.
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This principle was adopted by the OAU in its resolution of Border disputes of July 21 1964 which
provides that all states would respect the colonial boundaries.
The function of the principle is to preserve the territorial integrity of newly independent states.
The principle has been recognized and applied by the ICJ in border disputes. For instance in The
Burkina Faso and Republic of Mali (1986)
CASE
The Burkina Faso and Republic of Mali (1986)
International court of justice stated that the principle of Uti possidetis juris “is a general principle which
is logically connected with the phenomenon of obtaining of independence, whenever it occurs. It’s
obvious purpose is to prevent the independence and stability of states being endangered by Fratricidal
struggles provoked by the challenging of frontier following the withdrawal of the administering power.”
(pg 565)
In this case both states were formally French colonies being Upper Volta and French Sudan respectively.
Prior to this case being commenced before the court the parties had agreed that the mediation
commission of the organization of African unity would establish the delimitation of the frontier
between the two states a stretch of territory 300kms which was thought to be rich in mineral resources.
The mediation commission having failed to establish a mutually acceptable delimitation of the frontier
the parties submitted the disputes to a chamber of the court with a request for the chamber to resolve
their dispute on the basis inter alia of “the principle of the intangibility of frontiers inherited from
colonization.”
In its judgment the court stated that it could not disregard the principle of Uti possidetis juris whose
application gives rise to the respect for intangibility for frontiers. The court emphasized that the
principle is “a firmly established principle of International law where decolonization is concerned” and
that although it was first invoked and applied in Latin America “the principle is not a special rule which
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pertains solely to one specific system of International law.” (I.e. it is a principle of general application.)
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THE PRINCIPLES of JURISDICTION
Introduction
The jurisdiction of a state describes the power of the state under international law to exercise
its authority over persons, property and activities by the use of its municipal law.
Jurisdiction is a fundamental aspect of sovereignty and refers to the legislative administrative
and judicial powers of government.(Kenya has the powers of administration and adjudicative
powers within its territories).
International law distinguishes three kinds of jurisdiction:
1. Jurisdiction to Prescribe (Prescriptive or Legislative Jurisdiction): Refers to the
authority of the state to make and apply its laws to person’s properties and activities
within the states. Kenya has power to legislate for anything that is allowed under its
jurisdiction within international law.
2. Jurisdiction to Adjudicate (Adjudicative Jurisdiction) :This refers to the authority of a
state to subject particular persons, property and activities to its judicial process i.e. the
competence of courts to bring parties before them and to render authoritative
judgment. Kenya has compulsory jurisdiction over its individuals.
3. Jurisdiction to Enforce (Administrative Enforcement/ Executive or Prerogative
Jurisdiction): This refers to the authority of a state to use the resources of government
to induce or compel compliance with its law for instance through arrest or seizure of
property.
As a general rule a state descriptive jurisdiction is unlimited and a state may legislate any matter
irrespective of where it occurs of the nationality of the persons it involves.
CONSIDER
When the Government enacts the law then the law is applicable to every person in Kenya or
However the sovereign equality of state means that one’s state may not exercise its
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enforcement jurisdiction in a concrete sense over persons or activities actually situated in
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foreigners in Kenyan except those protected with immunity. (Discuss)
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another’s states territory irrespective of the reach of its prescriptive jurisdiction at least not
without the latter states consent.
For instance a person may commit an offence in Kenya and then escape to the US or UK, the
Kenyan courts have jurisdiction to try that person but the Kenyan police cannot enter US or UK
territory and arrest him except under the terms of a treaty or with some other forms of consent.
If the Kenyan police did so this would be contrary to the well established rule of International
Law that one state may not perform acts of sovereignty on the territory of another state.(See
Article 25 of the UN Charter)
Article 25
The Members of the United Nations agree to accept and carry out the decisions of the Security Council
in accordance with the present Charter.
As a collary to these principles a states enforcement jurisdiction within its own territory is
presumptively absolute over all persons and matters situated therein.(State immunity and
Diplomatic immunity being the only exception to this principle)
In practice the three kinds of jurisdiction are often interdependent. Jurisdiction to prescribe may
be more acceptable where jurisdiction to adjudicate and enforce is available. Parliament cannot
legislate if the laws enacted cannot be implemented or enforced.
Jurisdiction to adjudicate may be more acceptable where the forum state also has jurisdiction to
prescribe by virtue of its links to the person’s interest’s relations or activities involved. The High
Court cannot assume jurisdiction over foreigners, it can only assume adjudicative and
prescription if it recognizes the jurisdiction of the foreign state e.g. married couples.
Problems of jurisdiction feature quite generally in International relations and government often
have to decide how far to assert the authority and when to oppose the exercise of jurisdiction
authority by other states.
1. PRESCRIPTIVE JURISDICTION
of national courts disclosed five basic principles on which extensive prescriptive jurisdiction is
claimed by states.
These are
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State practice as evidenced by the resolution of International conferences and the jurisprudence
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i.
Territorial principle
ii.
Nationality principle
iii.
Protective principle
iv.
Passive personality principle
v.
The Universality principle
i)
THE TERRITORIAL PRINCIPLE
Determines jurisdiction by reference to the place where the offence is committed and extends
to the most essential attributes of states sovereignty namely a distinct and delineated territory,
unknown and loyal population and an independent government.
A state must have jurisdiction to independently govern its own population in its own territory.
The law of the state applies to all persons, property and activities in the territory over which it
has jurisdiction unless a contrary intention appears.
For purposes of international law and exercise of territorial jurisdiction the territorial sea over
coastal jurisdiction/ state, a ship flying its flag and an aircraft registered in its territory and the
ports of a coastal state have been assimilated to the territory of a state. KQ is registered in
Kenya and whatever happens will be governed by Kenyan law.(Under IL if there is someone who
hijacks a plane which is a continuing offence and every state through whom the aircraft passes,
the states have the power or jurisdiction over that hijacking.)
Apart from this assimilation state practice has extended the principle of territorial jurisdiction in
order to justify action taken in cases where one or more constituent elements of an act or
offence took place outside the territory of the state.
International communication and transport have led to the commission of crimes in one state
which were engineered or prepared in another state.
Some states in whose territory and such ancillary acts took place declined to prosecute or
punish the offenders responsible on the ground as the acts were a principle accessory to the
committed offence elsewhere, the territorial jurisdiction did not apply. (A group of students
Kenya and come back to do so in Kenya. Tanzania has jurisdiction over the students as they
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committed the offence on Tanzania territory.)
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cross the border to Tanzania, and start organizing how they can overthrow the government of
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A distinction was made between Subjective Territorial Principle and Objective Territorial
Principle.
The state where the act commenced or was engineered has jurisdiction under the subjective
territorial principle while the state where the act is completed or consummated in our case
Kenya has jurisdiction under the objective territorial principle (also sometimes called the effect
principle based on the fact that the injurious effect although not the act or omission itself
occurred on the territory of that state.)
Examples include a man firing a gun across a frontier and killing another man in a neighboring
state or a man obtaining money by false pretences by means of a letter posted in Kenya to a
recipient in Nigeria.
The objective territorial principles received judicial support in the SS Lotus case
CASE
SS LOTUS CASE
When the majority of the PCIJ by assimilating the Turkish vessel to Turkish territory brought the case
under the principle of the objective territorial jurisdiction. The court held, “the offence produced its
effect and the Turkish vessel and consequently in a place assimilate to Turkish territory in which the
application of Turkish criminal law cannot be challenged even in regard to offences committed there by
foreigners.”
Turkey had not acted in violation of the IL in the arrest, trial and conviction of the French officer on
watch at the time of the coalition.
ii)
THE NATIONALITY PRINCIPLE
It determines jurisdiction by reference to a nationality or national character of the person
committing the offence and it’s the most fundamental principle of extra territorial jurisdiction.
Under this principle a state’s laws may be applied extra territorially to its citizen’s individuals or
corporations whenever they may be found.
nationality is based upon the allegiance of which the person charged with a crime owes to the
state of which he is a national. We all owe allegiance and are under obligation to follow the law
in Kenya.
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The competence of a state to prosecute and punish its nationals on the sole basis of their
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A person or a corporation located for doing business in a foreign country may accordingly be
subject to the territorial jurisdiction of a foreign state but also to the jurisdiction of the state of
nationality.
Nationality is an accepted basis for jurisdiction exercised in cases where offences have
committed in such places as the High seas or outer space where the territorial jurisdiction is
inapplicable (Res Communis- no state has jurisdiction over them).
State practice distinguishes between Active Nationality and Passive Nationality Principles.
Under the former jurisdiction is assumed by the state of the person against whom proceedings
are taken is a national. This principle is considered by international law to all states desiring to
apply it.
Starke submits that there is indeed a co-relative principle of the law of extradition that no state
is bound to extradite from its territory and national guilty of an offence committed abroad.( If
there is a conflict of jurisdiction, one commits an offence in UK and comes back to Kenya, can be
protected as a national.)
Under the latter i.e Passive Nationality Principle jurisdiction is assumed by the state of which
the person suffering injury the victim is a national.
Under this principle a state may exercise jurisdiction over all crimes where the victim was its
national irrespective of the place where the crime was committed or the nationality of the
offender once the offender comes within its jurisdiction.
The justification for the exercise of this jurisdiction based on this principle is that each state has
a right to protect its citizens abroad and if the territorial state of the locus delicti neglects or is
unable to punish the persons causing injury the state of which the victim is a national is entitled
to do so if the person responsible comes within its power.(Note :Troops or soldiers are not
treated like ordinary citizens they enjoy state immunity.)
See the Cutting Case
CASE
The Cutting Case
Cutting an American citizen was prosecuted for libel for a publication he did in El Paso Texas. The US
protested but the Mexican government asserted the proprietary of proceeding under Article 186 of the
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an American citizen for publication of a defamatory statement against a Mexican in a Texas Newspaper.
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It was partly on the Nationality Principle in this case a court in Mexico assumed criminal jurisdiction over
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Mexican Penal Code which provided that “Penal offences committed in foreign countries by Mexicans
against Mexicans or foreigners against Mexicans “if they have not been tried elsewhere and if the
accused is in the Republic voluntarily or by extradition are triable in Mexico”.
The victim of the alleged libel was a Mexican and the accused had resided in Mexico on and off basis for
18 months. The charge against the accused was amended to include libel through the circulation of the
Newspaper containing the article with the libel information in Mexico
NB: Foreign diplomatic missions are not part of the Kenyan territory. They enjoy immunity under that
state.
iii)
THE PROTECTIVE PRINCIPLE
Under this principle jurisdiction is determined by reference to the national interest injured by
the offence.
Accordingly a state may exercise jurisdiction over foreigners who have committed acts abroad
which are deemed prejudicial to the security of the state concerned.
The principle is justifiable on the basis of protection of a state’s vital interests since the foreigner
might not be committing an offence under the law of the country where he is residing and
extradition may be refused especially if it entails political offences.
Here state jurisdiction is based on conduct outside its territory that threatens its security as a
state or the operation of its governmental functions provided the conduct is generally
recognized as a crime under law of nations (International law).
See the case of US vs. Pizzaruso 392 US 936 (1968)
CASE
US vs. Pizzaruso 392 US 936 (1968)
The defendant Jean Philomena Pizzaruso a citizen of Canada was convicted in the Federal court of the
southern district of New York of the crime of knowingly making under oath a number of false
statements in her visa application at the US Consulate in Montreal Canada thereby violating US
statement with respect to a material fact’ in a visa application constitutes an affront to the various
sovereignty of the US. These false statements must be said to have a deleterious/harmful influence on
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On appeal the CA affirmed the decision of the lower court holding, “‘the utterance by an alien of a false
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Immigration Laws.
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valid governmental interests…a violation of the immigration laws is completed at the time that the alien
perjures himself in the foreign country.”
The protective principle has also been recognized as a basis for exercise of jurisdiction over
aliens involved in espionage counterfeiting of the states seal or currency falsification of official
documents and conspiracy to violate immigration or customs laws.
Although the principle may be seen as a special application of the effect principle it has been
treated as an independent basis of jurisdiction.
Although most states use this principle there is nevertheless the danger that some states may
abuse the principle if “national security” or “vital interests” are given a broad interpretation. For
instance if a paper published in state A criticizes State B, state b may claim jurisdiction to try the
editor of the paper for sedition. E.g. Salman Rushdy with the satanic verses. It is also banned in
Kenya
The protective principle must not be confused with diplomatic potential which refers to the
right of the state to intervene diplomatically or to raise an international claim on behalf of its
national against another state.
iv)
THE PASSIVE PERSONALITY PRINCIPLE
The passive personality principle is a variant of nationality.
It determines jurisdiction by reference to the nationality.
Under this principle state has jurisdiction to punish aliens for harmful acts committed abroad
against its nationals.
The principle is difficult to justify in theory a state practice shows that it is rarely invoked as a
ground of a certain jurisdiction on the some countries claiming its contrary to International law.
However, its been successfully relied on in a number of cases. For instance, in US vs. Yunis (83)
AJIL 94 (1989)
CASE
The US based its jurisdiction to prosecute a Lebanese national for hijacking a Jordanian airliner in part of
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the passive personality principle. Yunis, a Lebanese citizen and resident was charged by the US for his
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US vs Yunis (83) AJIL 94 (1989)
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alleged involvement in the 1985 hijacking of a Jordanian civil aircraft in the Middle East. The only nexus
of the aircraft in the US during the hijacking was the presence of a number of American nationals in the
flight.
The aircraft was registered in Jordan and flew the Jordanian flag but never landed on the American soil
or overflew on American airspace. In November 1987 more than two years after the hijacking Yunis was
lured by agents of the US FBI agents into international waters of the coast of Cyprus where he was
apprehended and forcefully taken to the US.
He moved to dismiss the indictment on the ground that under the general principles of international law
the US court lacked subject matter and personal jurisdiction over a crime committed by a non resident
alien on foreign soil and that the federal law of the US provided no independent basis for the exercise of
such jurisdiction.
He argued that the universal and passive personality principles, the only potential basis for a certain
jurisdiction over extra territorial crimes allegedly committed by him was inapplicable in the instance
case. He contended that neither hostage taking nor aircraft piracy are heinous crimes encompassed by
the ‘universal doctrine’ and further that the US did not recognize passive personality principle as a
‘legitimate source of jurisdiction.’
The court held that both the universal and passive personality principles provided an appropriate basis
for jurisdiction in this case. The court stated that the International community recognizes the legitimacy
of the passive personality principle and explicitly approved the principle as a basis for a certain
jurisdiction over hostage takers. In a certain jurisdiction the court stated, “ not only is the US acting on
behalf of the world community to punish alleged offenders of crimes that threatened the very
foundations of world order but the US has its own interest in protecting its nationals.”
v)
THE UNIVERSALITY PRINCIPLE
The principle determines jurisdiction by reference to the custody committing the offence.
Under this principle each and every state has jurisdiction to try and punish perpetrators of
crimes against humanity for the international community as a whole.
states wherever it is permitted.
In as much as the offence is contrary to the interest of the international community it is treated
as a Delicti Jure Gentium and all states are entitled to apprehend and punish the offenders.
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An offence subject to the universality principle is one which comes under the jurisdiction of all
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The power of a state to punish crimes wherever and by rules of whosoever has committed is
without the requirement of information to territory, nationality or special state interest. States
have granted the liberty to prosecute persons under their national laws for acts which
proscribed by international law.
The exercise of jurisdiction is justified by the universal condemnation of the acts and general
interest in cooperation to suppress them as a matter of customary International law or multi
lateral international agreements.
Universal jurisdiction depends solely on the nature of the offence committed and is principally
exercised by the state which has apprehended the alleged offender.
The state may prescribe and prosecute offences provided in a number of treaties on matters of
general international concerns such as drug trafficking, hijacking and sabotage of aircraft,
apartheid, attacks on diplomats, taking of hostages and torture besides customary international
crimes such as piracy, slavery, genocide and war crimes.
The state which prosecutes and punishes a pirate or a war criminal under its national law acts
solely as the organ and agent of the international community and meets out punishment to the
offender for his breach of the prohibition imposed by international law.
Accordingly see the case of Eichmann v AG of Israel 1962 Vol 36 ILR pg 277,
CASE
Eichmann vs. AG of Israel 1962 Vol 36 ILR pg 277,
The Supreme Court of Israel held that in punishing war crimes pursuant in the universality principle the
state was “acting in the capacity of guardian of International law and agent for its enforcement.”
Adolph Eichmann a Nazi functionary of German or Austrian nationality who was concerned in the Final
solution of large numbers of Jewish persons of German, polish and other nationalities prior to the 1945
defeat of Germany escaped to Argentina. There he was tracked down by Israeli secret agents by order of
the then PM David Ben-Gurion ceased and abducted to Israel. He was charged under the Nazi
collaborators (Punishment Law of 1950 with 15 counts of war crimes and crimes against humanity. It
was alleged on his behalf that the exercise of jurisdiction by the court of Israel in respect of the crime
abduction.
The court found them guilty and his appeal was dismissed by the Supreme Court. The Supreme Court
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citizens was contrary to International law as was the prosecution consequent upon an international
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committed outside Israel and before Israel had been created against persons who were not Israeli
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stated, ‘… the crimes of which the appellant was convicted…have always borne the stance of
International crimes burned by International law and entailing individual criminal liability. It is the
particular universal character of these crimes that vests in each state the power to try and punish any
who assisted in their commission.”
Besides piracy and war crimes states have jurisdiction to define and prescribe punishment for
slavery attacks on and hijacking of aircraft and genocide.
These and other International crimes have been addressed in a number of multilateral treaties
that provide for unilateral jurisdiction as a manifestation of international concern.
The governing principle in these cases is expressed by the latin word aut punire aut dedere
which means either punish or extradite -the offendants must be punished by the state on whose
territory they are found or must be extradited to the state which is competent and desirous of
exercising jurisdiction over them.
ILLEGALLY OBTAINED CUSTODY
The exercise of jurisdiction over persons apprehended over international law poses difficult
questions. There is no consensus among jurists and state practice is disparate.
The forceful abduction of Eichmann in violation of Argentina territorial integrity was not a ban of
the exercise of jurisdiction by the Israeli court.
The tribunal does not normally concern itself to the means by which the case is brought before
it.
Unlawful arrest does not affect the court’s jurisdiction to hear a case. Accordingly a state will in
the absence of protest in the other states try alleged offenders brought before its courts by
irregular means.
However the state whose sovereignty has been violated may initiate an international claim
against the offending state.
In the Eichmann case, Argentina did not however demand the return of Eichmann although it
taken by citizens of Israel, which infringed the fundamental rights of the state of Argentina.”
See and compare with the case of US vs. Alvarez-Machain (1992)112
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1960 Argentina and Israel resolved “to regard as closed incidence which arose out of the action
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complained to the UN Security council and by adjoined communiqué issues on the 3rd August
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CASE
US vs. Alvarez-Machain (1992)112
The US Supreme Court held that the American court had jurisdiction to try the accused abducted from
Mexico as long as the manner in which he was brought before the court in question did not violate the
terms of any treaty between the states concerned.
In 1985 a US special agent in the Drug Enforcement Administration was abducted by drug dealers in
Mexico and afterwards tortured and murdered. Apart from the fact that the victim of the crime was an
American citizen all the other aspects of the offence took place in Mexico. US special agent ceased
Alvarez a medical doctor and Mexican citizen in Mexico and flew him to the US by private aircraft. There
he was arrested and charged with having participated in the torture and killing of the US special agent.
At that time the US and Mexico had an extradition agreement between them to facilitate the extradition
of suspected criminals from one country to the other. The Mexican Government protested to the US
government alleging that the abduction violated the terms of the extradition agreement as well as
general principles of customary international law namely the tradition of principles for founding
jurisdiction. At his arraignment in a District court the accused argued that he US court lacked personal
jurisdiction inter alia because his abduction has been carried out without the consent of the American
government as required under the treaty. He argued that the violation of the international obligation
contained in that agreement by the government from conducting criminal prosecution. The district
court upheld these arguments and ordered the release repatriation of the accused. The US government
appealed this decision which again found in favor of the accused. In response the authorities made an
appeal to the Supreme Court. The supreme held that the American court had jurisdiction to try the
accused as long as the manner in which he was brought before the court in question did not violate any
of the terms of any treaty in which the state was involved. The court analyzed the extradition agreement
and found that since there was no express provision of abduction but only an implied one. The
agreement did not bar US government from carrying out the criminal prosecution.
Contrast with the UK position in the following two cases
Regina -v- Horseferry Road Magistrates Court, ex Parte Bennett (No 1); HL 24-Jun-1993) - Ex-parte
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Bennett (1993) 3 ALL ER 138.
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CASE
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The UK house of lords held that when a defendant presence before the court had been procured by
abuse of process the UK courts should decline to exercise jurisdiction unless the UK authorities
participated in or procured or connived in the apprehension in violation of International law
The defendant had been brought to the UK in a manner which was in breach of extradition law. He had,
in effect, been kidnapped by the authorities.
Held: the House of Lords declared that where an extradition treaty existed with the relevant country
under which the accused could have been returned,'our courts will refuse to try him if he has been
forcibly brought within our jurisdiction in disregard of those procedures by a process to which our own
police, prosecuting or other executive authorities have been a knowing party'.
The High Court may look at how an accused person was brought within the jurisdiction when examining
a question about that person’s detention. It is axiomatic “that a person charged with having committed
a criminal offence should receive a fair trial and that, if he cannot be tried fairly for that offence, he
should not be tried for it at all.” Proceedings may be stayed in the exercise of the judge’s discretion not
only where a fair trial is impossible but also where it would be contrary to the public interest in the
integrity of the criminal justice system that a trial should take place. It was proper to order a stay of a
prosecution (Lord Oliver of Aylmerton dissenting).
Lord Lowry: “the court, in order to protect its own process from being degraded and misused, must have
the power to stay proceedings which have come before it and have only been made possible by acts
which offend the court’s conscience as being contrary to the rule of law. Those acts by providing a
morally unacceptable foundation for the exercise of jurisdiction over the suspect taint the proposed trial
and, if tolerated, will mean that the court’s process has been abused.”
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My Lords, I have no doubt that the judiciary should accept this responsibility in the field of criminal law.
The great growth of administrative law during the latter half of this century has occurred because of the
recognition by the judiciary and Parliament alike that it is the function of the High Court to ensure that
executive action is exercised responsibly and as Parliament intended. So also should it be in the field of
criminal law and if it comes to the attention of the court that there has been a serious abuse of power it
should, in my view, express its disapproval by refusing to act upon it. . .
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and “It would, I submit, be generally conceded that for the Crown to go back on a promise of immunity
given to an accomplice who is willing to give evidence against his confederates would be unacceptable
to the proposed court of trial, although the trial itself could be fairly conducted.”
Lord Griffiths said: “Your Lordships are now invited to extend the concept of abuse of process a stage
further. In the present case there is no suggestion that the appellant cannot have a fair trial, nor could it
be suggested that it would have been unfair to try him if he had been returned to this country through
extradition proceedings. If the court is to have the power to interfere with the prosecution in the
present circumstances it must be because the judiciary accept a responsibility for the maintenance of
the rule of law which embraces a willingness to oversee executive action and to refuse to countenance
behaviour that threatens either basic human rights or the rule of law.
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The courts, of course, have no power to apply direct discipline to the police or the prosecuting
authorities, but they can refuse to allow them to take advantage of abuse of power by regarding their
behaviour as an abuse of process and thus preventing a prosecution.”
CASE
Ex-parte Westfallen (1998) 4 all ER 210
The High Court took the view that where there had been no illegality, abuse of power or violation of
international law or of the domestic law of the foreign states involved, the decisions under challenge
could not be impugned nor the subsequent criminal proceedings be vitiated.
ENFORCEMENT JURISDICTION
The international law governing the enforcement jurisdiction is based on one basic principle
namely enforcement jurisdiction can not be exercised in the territory of another state except on
the consent of the other state.
In other words enforcement jurisdiction is in principle is limited to the territory of the state
concerned.
Examples of cases of such consent include agreements where the law enforcement agents of
one state may be allowed to enter the territorial waters of another state to pursue vessels
suspected of being engaged in trafficking illicit drugs and or piracy.
A special application of this principle is that courts of one state will generally not enforce the
public laws of another state such as criminal or taxation laws that manifest the states
sovereignty over its territory.
CONFLICTS OF JURISDICTION
In practice the various principles of exercise of jurisdiction do conflict and overlap.
For instance a state may on the basis of nationality principle reach its national abroad but the
conducts of the nationals of that state may on the basis of the territorial principle also may be
within the jurisdiction of the foreign state in which these nationals act.
Similarly, one state may have jurisdiction under subjective territorial principle and another
under the objective territorial or the protective principle. In these circumstances a criminal may
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be tried and punished by several different countries.
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These overlaps lead to complex issues whose resolution depends more upon the corporation
between the states involved as international law is silent on the point whether conviction or
acquittal in a foreign country is a bar to a subsequent prosecution in another country.
The laws of the state involved may reach different results in a meeting prohibiting or even
requiring a certain act.
In some cases the resolution depends on International agreements that limit absolute assertion
of jurisdiction.
The case of State Corporation in resolving the overlaps is illustrated by the sample of a foreign
ship which enters support voluntarily not as a consequence of distress.
In such a case foreign ship owes temporary allegiance to the territorial sovereign and a case of
jurisdictional overlap arises because both the flag state and the local sovereign may exercise
jurisdiction in respect of conduct that violated their respective laws.
As the territorial state the local sovereign is entitled to exercise jurisdiction over a foreign ship in
its port, persons and goods on board the ship.
In criminal matters it is not usual for the local authorities to intervene and enforce unless their
assistance is requested by or on behalf of the local representative of the flag state or those in
control of the ship or a person directly concerned or unless the peace and good order of the
court is or is likely to be affected.
See the Wildenhus Case 1887 120 US
CASE
Wildenhus Case 1887 120 US
The US Supreme Court took the view that a murder by one crew off another of foreigners committed on
board a foreign ship docked in a local port ipso facto disturbed the public peace on shore and therefore
justified the exercise of jurisdiction by the local authorities.
Wildehus a Belgium national killed another Belgium national below the deck of Belgium vessel of which
there were both crew members which was at the time of the killing moored to the dock in Jersey City.
The police arrested Wildehus and charged him with the killing. They also held two other crew members
whereof provided inter alia that the respective authorities would have exclusive charge of the internal
order of the merchant vessels of their nation and that the local authorities would not interfere except
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of Wildehus. He relied upon the treaty of March 9th 1880 between Belgium and the US Article IX
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as witnesses to the killing. The Belgium counsel applied for a writ of habeas corpus to obtain the release
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when the disorder that had arisen was of such a nature as to disturb the tranquility and public order on
shore or in the port or when a person of the country or not belonging to the crew would be concerned
therein. The circuit court refused the application. On appeal to the supreme court habeas corpus was
denied the court stating, “…with crimes which from their gravity awaken public interest as soon as they
become known,…enquiry is certain to be instituted at once to ascertain why and how the thing was done,
and the popular excitement rises or falls as the news spread and the facts become known. It is not alone
for the publicity of the act or the noise and clamor which attains it that fixes the nature of the crime but
the act itself. If that is of a character to awaken public interest when it becomes known, it is a ‘disorder’
the nature of which is to affect the community at large and consequently to invoke the power of the local
government whose people had been disturbed by what was done. The very nature of such an act is to
disturb the quiet of a peaceful community, and to create, in the language of the treaty, a ‘disorder’ which
will disturb tranquility and public order on shore or in the port’ the principle which governs the whole
matter is this: Disorders which disturb only the peace of the ship or those on board are to be dealt with
exclusively by the sovereignty of the home of the ship, but those which disturb the public peace may be
suppressed, and , if need be, the offenders punished by proper authorities of the local jurisdiction.”
The court concluded by stating that it must be considered by all that felonious homicide was a subject
for local jurisdiction and the subject that if proper authority were proceeding with a case in a regular
way the council had no right to interfere to prevent it.
While most states are fully entitled to exercise jurisdiction over foreign vessels with their
internal waters they rarely do so.
Instead most states abide to the French modification i.e. most states based on commity and
reciprocity declined to exercise their jurisdiction over foreign vessels unless activities there on
threaten the peace of the port or the public peace. This was the modification adopted by the US
Supreme Court in its affirmation of the Circuit Court in the Wildenhus Case.
Although the universality principle gives jurisdiction to all states in cases of Aerial Hijacking the
1963 Tokyo Convention on Offences and Certain Other Acts Committed on Board Aircraft as
Although the state of registration of the aircraft is competent to exercise jurisdiction over
offences and acts committed on board of the aircraft it no longer exercises exclusive jurisdiction.
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states concurrent jurisdiction to try and punish the offenders.
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well as the 1970 Hague Convention for the Suppression of Unlawful Seizure of Aircraft gives
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Under Article 3 of the Tokyo Convention each contracting state is required to take such
measures as may be necessary to establish its jurisdiction as the state of registration over
offences committed on board of the aircraft.
Under the provisions of the Hague Convention hijacking is considered as a continuing offence
and any state where the aircraft lands is entitled to exercise jurisdiction on the basis of the
territorial principle.
However, there are some international limits to the jurisdiction of states.
Where two states have jurisdiction should prescribe and enforce rules of law and the rules they
may prescribe require inconsistent conduct in the part of a person each state is required by
international law to consider in good faith moderating the exercise of its enforcement
jurisdiction in the light of factors such as
i.
The vital national interests of each of the state
ii.
The nature and extent of the hardship that inconsistent and enforcement actions may
impose on the person
iii.
The extent to which the required conduct is to take place to the territory of the other
state
iv.
The nationality of the person involved
v.
The extent to which enforcement by action of either state can reasonably be expected
to achieve compliance with the rules prescribed by the other state.
The illustration of the extent to which international law limits the exercise of state jurisdiction is
The Barcelona Traction Light and Power Company Case.
CASE
The Barcelona Traction Light and Power Company Case.
The company had been incorporated in Canada in 1911 to develop and operate and electric power
system in Spain. In 1948 it was declared bankrupt by a Spanish court and its assets were ceased. At the
time 88% of the shares in the company were owned by Belgian nationals and so the Belgium
government wrote this action against Spain in respect of the injury to its nationals who are shareholders
inadmissible because the Belgium government lacked any dues standing to intervene or jurisdiction to
exercise diplomatic protection on behalf of its nationals who are share holders in a Canadian rather than
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company. The Spanish government raised four objections among them that the Belgium claim was
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resulting from the injury to the company or the allegation that the company was really a Belgium
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Belgian company.
The court noted that decisive for the issue of the Belgium government jurisdiction to invoke diplomatic
protection was the existent or absence of a right belonging to Belgium and recognized as such by
International law.
While the court recognized that there are possible exceptions to the general principle in International
law that Diplomatic protection of a company can only be given by that companies national state it found
that such exception was not present in the case where the secession of protection by the companies
national states was not the result of any legal impingement. The court declines to lift the corporate veil
to determine the existence of a link between the state and the corporation on the basis of control
noting that the company had maintained its offices shares accounts board meetings and tax receipts in
Canada for about 50 years and had disclosed from the outset of its incorporation that its activities were
geared through business outside of Canada. Accordingly the court rejected Belgium claim upon the
ground that Belgium had no locus standii to espouse before the court claims of alleged Belgium
nationals who are share holders in the company in as much as the company was incorporated in Canada
and was in an international legal sense of Canadian nationality.
The reasoning relied on by the court may be explained as follows: the jurisdiction of a state to invoke
diplomatic protections or corporations abroad is based on nationality.
The individuals or corporations that the state seeks to protect must be its nationals.
It is only the bond of nationality that entitles the state to exercise diplomatic protection and seek
redress under International law for a wrong done to its national abroad.
In the case of a company the basic test is where the entity is incorporated and has its registered office.
International law recognizes the general principle of municipal law that an infringement of the rights of
a company does not involve liability towards the share holder even if their interests are detrimentally
affected by the infringement. The company is a distinct and separated legal person from the share
holders and the court will not look behind the corporate veil.
A different principle might apply if the wrong were aimed at the direct right of the shareholders as such.
However the present case was not concerned to the infringement of the shareholders direct rights but
See also the Nottebohm Case (Liechtenstein vs Guatemala) Second Phase 1955 ICJ Report 4
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with the alleged illegal measures taken by Spain against the company.
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CASE
Nottebohm Case (Liechtenstein vs Guatemala) Second Phase 1955 ICJ Report 4
The Nottebohm case had been brought to the Court by an Application by the Principality of
Liechtenstein against the Republic of Guatemala.
Liechtenstein claimed restitution and compensation on the ground that the Government of Guatemala
had acted towards Mr. Friedrich Nottebohm, a citizen of Liechtenstein, in a manner contrary to
international law. Guatemala, for its part, contended that the claim was inadmissible on a number of
grounds, one of which related to the nationality of Nottebohm, for whose protection Liechtenstein had
seised the Court.
In its Judgment the Court accepted this latter plea in bar and in consequence held Liechtenstein's claim
to be inadmissible.
The Judgment was given by eleven votes to three. Judges Klaestad and Read, and M. Guggenheim, Judge
ad hoc, appended to the Judgment statements of their dissenting opinions.
In its Judgment the Court affirmed the fundamental importance of the plea in bar referred to above. In
putting forward this plea, Guatemala referred to the well-established principle that it is the bond of
nationality between the State and the individual which alone confers upon the State the right of
diplomatic protection. Liechtenstein considered itself to be acting in conformity with this principle and
contended that Nottebohm was, in fact, its national by virtue of the naturalization conferred upon him.
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The necessary conditions for the naturalization of foreigners in Liechtenstein are laid down by the
Liechtenstein Law of 4th January, 1934. This Law requires among other things: that the applicant for
naturalization must prove that acceptance into the Home Corporation (Heimat verband) of a
Liechtenstein commune has been promised to him in case of acquisition of the nationality of the State;
that, subject to waiver of this requirement under stated conditions, he must prove that he will lose his
former nationality as the result of naturalization; that he has been resident in the Principality for at least
three years, although this requirement can be dispensed with in circumstances deserving special
consideration and by way of exception; that he has concluded an agreement concerning liability to
taxation with the competent authorities and has paid a naturalization fee. The Law reveals concern that
naturalization should only be granted with full knowledge of all the pertinent facts and adds that the
grant of nationality is barred where circumstances are such as to cause apprehension that prejudice may
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The Court then considered the facts. Nottebohm, born at Hamburg, was still a German national when, in
October 1939, he applied for naturalization in Liechtenstein. In 1905 he went to Guatemala, which he
made the centre of his business activities, which increased and prospered. He sometimes went to
Germany on business and to other countries for holidays, and also paid a few visits to Liechtenstein,
where one of his brothers had lived since 1931; but he continued to have his fixed abode in Guatemala
until 1943, that is to say, until the events which constituted the basis of the present dispute. In 1939 he
left Guatemala at approximately the end of March; he seems to have gone to Hamburg and to have paid
a few brief visits to Liechtenstein, where he was at the beginning of October 1939. It was then, on 9th
October, 1939, a little more than a month after the opening of the Second World War, marked by
Germany's attack on Poland, that he applied for naturalization in Liechtenstein.
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enure to the State of Liechtenstein. As regards the procedure to be followed, the Government examines
the application, obtains information concerning the applicant, submits the application to the Diet, and, if
this application is approved, submits a request to the Reigning Prince who alone is entitled to confer
nationality.
In his application for naturalization Nottebohm also applied for the previous conferment of citizenship
of Mauren, a commune of Liechtenstein. He sought dispensation from the condition of three years' prior
residence, without indicating the special circumstances warranting such a waiver. He undertook to pay
(in Swiss francs) 25,000 francs to the Commune and 12,500 francs to the State, the costs of the
proceedings, and an annual naturalization tax of 1,000 francs - subject to the proviso that the payment
of these taxes was to be set off against ordinary taxes which would fall due if the applicant took up
residence in Liechtenstein - and to deposit as security the sum of 30,000 Swiss francs. A Document
dated 15th October, 1939 certifies that on that date the citizenship of Mauren had been conferred upon
him. A Certificate of 17th October, 1939 evidences the payment of the taxes required to be paid. On
20th October Nottebohm took the oath of allegiance and on 23rd October an arrangement concerning
liability to taxation was concluded. A Certificate of Nationality was also produced to the effect that
Nottebohm had been naturalized by a Supreme Resolution of the Prince of 13th October, 1939.
Nottebohm then obtained a Liechtenstein passport and had it visa-ed by the Consul General of
Guatemala in Zurich on 1st December, 1939, and returned to Guatemala at the beginning of 1940,
where he resumed his former business activities.
These being the facts, the Court considered whether the naturalization thus granted could be validly
invoked against Guatemala, whether it bestowed upon Liechtenstein a sufficient title to exercise
protection in respect of Nottebohm as against Guatemala and therefore entitled it to seise the Court of
a claim relating to him. The Court did not propose to go beyond the limited scope of this question.
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Nationality is within the domestic jurisdiction of the State, which settles, by its own legislation, the rules
relating to the acquisition of its nationality. But the issue which the Court must decide is not one which
pertains to the legal system of Liechtenstein; to exercise protection is to place oneself on the plane of
international law. International practice provides many examples of acts performed by States in the
exercise of their domestic jurisdiction which do not necessarily or automatically have international
effect. When two States have conferred their nationality upon the same individual and this situation is
no longer confined within the limits of the domestic jurisdiction of one of these States but extends to
the international field, international arbitrators or the Courts of third States which are called upon to
deal with this situation would allow the contradiction to subsist if they confined themselves to the view
that nationality is exclusively within the domestic jurisdiction of the State. In order to resolve the conflict
they have, on the contrary, sought to ascertain whether nationality has been conferred in circumstances
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In order to establish that the Application must be held admissible, Liechtenstein argued that Guatemala
had formerly recognized the naturalization which it now challenged. Examining Guatemala's attitude
towards Nottebohm since his naturalization, the Court considered that Guatemala had not recognized
Liechtenstein's title to exercise protection in respect to Nottebohm. It then considered whether the
granting of nationality by Liechtenstein directly entailed an obligation on the part of Guatemala to
recognize its effect, in other words, whether that unilateral act by Liechtenstein was one which could be
relied upon against Guatemala in regard to the exercise of protection. The Court dealt with this question
without considering that of the validity of Nottebohm's naturalization according to the Law of
Liechtenstein.
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such as to give rise to an obligation on the part of the respondent State to recognize the effect of that
nationality. In order to decide this question, they have evolved certain criteria. They have given their
preference to the real and effective nationality, that which accorded with the facts, that based on
stronger factual ties between the person concerned and one of these States whose nationality is
involved. Different factors are taken into consideration, and their importance will vary from one case to
the next: there is the habitual residence of the individual concerned but also the centre of his interests,
his family ties, his participation in public life, attachment shown by him for a given country and
inculcated in his children, etc.
The same tendency prevails among writers. Moreover, the practice of certain States, which refrain from
exercising protection in favour of a naturalized person when the latter has in fact severed his links with
what is no longer for him anything but his nominal country, manifests the view that, in order to be
invoked against another State, nationality must correspond with a factual situation.
The character thus recognized on the international level as pertaining to nationality is in no way
inconsistent with the fact that international law leaves it to each State to lay down the rules governing
the grant of its own nationality. This is so failing any general agreement on the rules relating to
nationality. It has been considered that the best way of making such rules accord with the varying
demographic conditions in different countries is to leave the fixing of such rules to the competence of
each State. But, on the other hand, a State cannot claim that the rules it has laid down are entitled to
recognition by another State unless it has acted in conformity with this general aim of making the
nationality granted accord with an effective link between the State and the individual.
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In this connection the Court stated the essential facts of the case and pointed out that Nottebohm
always retained his family and business connections with Germany and that there is nothing to indicate
that his application for naturalization in Liechtenstein was motivated by any desire to dissociate himself
from the Government of his country. On the other hand, he had been settled for 34 years in Guatemala,
which was the centre of his interests and his business activities. He stayed there until his removal as a
result of war measures in 1943, and complains of Guatemala's refusal to readmit him. Members of
Nottebohm's family had, moreover, asserted his desire to spend his old age in Guatemala. In contrast,
his actual connections with Liechtenstein were extremely tenuous. If Nottebohm went to chat country in
1946, this was because of the refusal of Guatemala to admit him. There is thus the absence of any bond
of attachment with Liechtenstein, but there is a long-standing and close connection between him and
Guatemala, a link which his naturalization in no way weakened. That naturalization was not based on
any real prior connection with Liechtenstein, nor did it in any way alter the manner of life of the person
upon whom it was conferred in exceptional circumstances of speed and accommodation. In both
respects, it was lacking in the genuineness requisite to an act of such importance, if it is to be enticed to
be respected by a State in the position of Guatemala. It was granted without regard to the concept of
nationality adopted in international relations. Naturalization was asked for not so much for the purpose
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According to the practice of States, nationality constitutes the juridical expression of the fact that an
individual is more closely connected with the population of a particular State. Conferred by a State, it
only entitles that State to exercise protection if it constitutes a translation into juridical terms of the
individual's connection with that State. Is this the case as regards Mr. Nottebohm? At the time of his
naturalization, does Nottebohm appear to have been more closely attached by his tradition, his
establishment, his interests, his activities, his family ties, his intentions for the near future, to
Liechtenstein than to any other State?
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of obtaining a legal recognition of Nottebohm's membership in fact in the population of Liechtenstein,
as it was to enable him to substitute for his status as a national of a belligerent State that of the subject
of a neutral State, with the sole aim of thus coming within the protection of Liechtenstein but not of
becoming wedded to its traditions, its interests, its way of life or of assuming the obligations - other
than fiscal obligations - and exercising the rights pertaining to the status thus acquired.
For these reasons the Court held the claim of Liechtenstein to be inadmissible.
EXTRADITION
Extradition refers to the surrender of an individual accused or convicted of a crime by the state
within whose territory he is found (the asylum state) to the forum state (requisitioning state).
There is no right to extradition apart from the treaty under international law.
Similarly there is no duty to surrender an alleged fugitive to the forum state except under treaty.
The treaty may be bi lateral or multi- lateral. Most bi-lateral treaties contain a list of offences for
which a fugitive may be extradited.
Multi lateral on the other hand stipulates that the act for which extradition is sought must be a
crime under both jurisdictions punishable by certain minimum penalty.
Indeed most multi lateral treaties codify “The Double Criminality Rule” of customary
international law.
This rule provides that extradition is only granted in respect of a deed which is a crime according
to law of asylum and requisition state.
Besides the courts of the asylum state don’t have to determine whether the defendant
committed the alleged crime for which extradition is sought.
The courts merely review the evidence to determine if a prima facie case exists for which the
defendant must answer at a trial in the requisitioning state.
A related principle is that of SPECIALTY i.e. a person that surrendered may be tried and
punished only for the offence for which extradition had been sought and granted.
Extradition shall not take place if the prosecution of the fugitive is barred by statutory limitation
in either state or where the fugitive are accused of political movement or in the course of a
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Most extradition treaties also exempt nationals of asylum state from extradition on basis that
individuals shouldn’t be withdrawn from jurisdiction of their own acts. Such persons must be
prosecuted by states where they are nationals.
PRACTICE QUESTION
a) “As a general rule a State prescriptive jurisdiction is unlimited and a State may legislate for
any matter irrespective of where it occurs.(Even if in the territory of another State) or the
nationality of the persons involved”. AON
Discuss the basis on which the assertion of state’s jurisdiction may be grounded.
b) What are the recognized exceptions under International law to the assertion of such
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jurisdiction?
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LECTURE 11: 5TH APRIL 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 9: STATE OR SOVEREIGN IMMUNITY
INTRODUCTION
Firstly it is important to note that a state has absolute power to legislate, adjudicate and enforce
laws under its own territory
Under classical international law foreign states and foreign diplomatic agents have been the
classical exceptions to the exercise of jurisdiction by states on basis of the territoriality principle.
A state can’t exercise its jurisdiction to apply its laws to these two entities.
In international law state immunity refers to or is the legal rules and principles determining
the conditions under which a foreign state may claim freedom from the jurisdiction of another
state.
In practice, problems of state immunity arise at two different levels:
i.
Immunity of a foreign state from jurisdiction of municipal courts of another state to
adjudicate a claim against arising from e.g. a contract or tort
ii.
The exemption of a foreign state from enforcement measures against its property
especially to execute a municipal court decision.
The principle of state immunity is one of the principles international law.
This has the consequence that should a state fail to apply it in an appropriate case, it will be
responsible under international law.
However, the actual circumstances in which the immunity is to be granted are usually settled by
the municipal law of each state.
States and their governments are granted immunity from the territorial jurisdiction of other
states on the basis of policy consideration because of the following reasons:
i.
The 1st reason is found in the Doctrine Of Sovereign Equality expressed in the latin
phrase Par in parem non habet imperium i.e. equals have no jurisdiction over one
another concerned with the status of legal equality attached to independent sovereign.
States being independent legal persons of equal standing can’t have their disputes
sovereign state through waiving its immunity. In this case the consent given upholds
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the state of equality.
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settled in the courts of one of them. This can only be done with the consent of the
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ii.
The 2nd reason is that it would as a corollary offend the dignity of a sovereign state, to
submit to the jurisdiction of another by having its acts performed in its sovereign
capacity subjected to the laws of another state. This is notwithstanding the fact that
such an act by a foreign sovereign state was a breach of the municipal law of the forum
state.
To avoid common confusion on this subject matter it is important to note that State and
Diplomatic immunity are procedural rules going to the jurisdiction of a national court. It does
not go to the substantive. While a country can claim state immunity it does not mean that it is
free from liability from the breach it only means that the National Courts of the other country
has no jurisdiction, the matter can still be followed up through diplomatic channels to its logical
conclusion.
EVOLUTION OF THE DOCTRINE OF STATE IMMUNITY
Originally under customary international law the doctrine of absolute state immunity applied
until the end of the 19th century covering all areas of state activities and recognizing very narrow
exceptions.
For a long time most common law countries have held the rule of absolute state immunity
which enable foreign states to enjoy immunity in respect of all their activities including
commercial ones
The Doctrine Of Absolute State Immunity was endorsed and explained by the Chief Justice
Marshal in The Scooner Exchange vs Mc Faddon
CASE
The Scooner Exchange vs Mc Faddon
In this case the court found that the French vessel in question subject of the dispute was exempt from
the US jurisdiction. Two US District Courts of Pennsylvania claiming they were entitled to possession of
the vessel. They alleged that the vessel had been seized in 1810 on the high seas by persons acting on
behalf of Napoleon as emperor of France and that without any French Prize Court Adjudication the
public vessel of France which had into court in Distress and asking that the Libel be dismissed. The
district court dismissed the libel, the circuit court reversed allowing the libel, and the US attorney
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appeared at the instance of the US government and filed a suggestion setting forth that the vessel was a
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vessel had now been brought to Philadelphia court. No appearance was made but the US Attorney
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appealed to the Supreme Court. But the Supreme Court in reversing the judgment of the circuit and
affirming the judgment of the district court stated. “The jurisdiction of the nation within its territory is
necessary exclusive and absolute. It is susceptible of no limitation not imposed by itself…this full and
absolute territorial jurisdiction being aligned to the attribute of every sovereign, and being incapable of
conferring extra territorial power, would not seem to contemplate foreign sovereigns nor their sovereign
rights as its objects. One sovereign being in no respect amenable to another, and being bound by
obligations of the highest character not to degrade dignity of his nation, by placing himself or its
sovereign rights within the jurisdiction of another, can be supposed to enter a foreign territory only
under an expressed license or in the confidence that the immunities belonging to his independent
sovereign station, though not expressly stipulated, are reserved by implication, and will be extended to
him….This perfect equality and absolute independence of sovereign and these common interests inhaling
them to mutual intercourse and an interchange of good offices with each other, have given rise to a class
of cases in which every sovereign is understood to waive the exercise of a part of that complete exclusive
territorial jurisdiction which has been stated to be the attribute of every nation.”
Accordingly the Supreme Court held that the Schooner exchange was exempt from the jurisdiction of
the US stating that subjecting her to the laws of US would affect the power and dignity of the French
sovereign.
The need for and rationale of absolute immunity began to be questioned towards the end of the
19th century when states began to engage in trade and other commercial functions not wholly
reserved for state.
The question was Why if two identical contracts were made one with a private person and
another with his government the former could be sued on his contract and the later (the
government) would not?
The problems became more acute with the widespread contracting for trade by in especially the
communist state and their trading organizations which concluded commercial dealings with
foreign individuals and companies.
These foreign individuals and companies have no remedies under the international law if
disputes arose because a foreign state or its organization could rely on the concept of sovereign
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immunity and claim immunity from the judicial process of the local courts.
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Absolute immunity seemed inappropriate, non realistic phenomenon in the lights of the
requirements of the contemporary commercial world and notion of stability fairness and equity
of the market place.
The need to separate state actions from actions that a private person would perform became
apparent.
Absolute immunity had been based on status. It was enough for a potential defendant to show
that it was a state or a state organization and that it was being impeded directly or indirectly for
it to be accorded immunity.
From the 1950s onwards several states began to move towards the restrictive or qualified
doctrine of state immunity following the early examples of Italy and Belgium which had adopted
restrictive state immunity doctrine since the turn of the century.
For instance under the auspices of the Council of Europe, European States confirmed these
restrictive approach to the concept of state immunity in 1972 by adopting the European
Convention On The State Immunity.
The states indicated that they would no longer emphasize the status of the defendant but
rather the nature of the activity or transaction in which it had been engaged.(Jane- private
individual – no immunity AND KQ- Private Corporation- accorded immunity).
A distinction was to be made between acta jure imperii i.e. acts in public authority in respect of
which there would still be immunity and acta jure gestionis i.e. commercial or private acts in
respect of which no immunity would lie.
Status remained important only to put a defendant within the category of persons who
potentially could claim immunity.
The actual entitlement so to claim would now depend upon the activity or transaction in
question.
By the 1970s several countries had adopted the restrictive approach of state immunity through
both legislative and judicial actions.
See the case of Alfred Dunhill of London Inc. vs. Republic of Cuba
In this case US Supreme Court applied the restrictive theory of sovereign immunity as the basis for
refusal to recognize the repudiation of commercial obligations of a state instrumentality as a state
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Alfred Dunhill of London Inc. vs.Republic of Cuba
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CASE
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transaction.
Immunity was to be granted to the respect to causes of action arising out of foreign states public or
governmental actions and not with respect to those arising out of its commercial or proprietary action
because in the later capacities the foreign states exercise only those powers that can also be exercised
by private individuals.
Facts
In 1960 the Cuban Government confiscated businesses and assets of five leading manufacturers of
Havana Cigars. These companies were organized under Cuban Law and were owned by Cuban Nationals.
The companies sold large quantities of cigars to foreign customers in several countries including the US
where the three principle importers were the petitioner Albert Dunhill, Saus & Co, and Faber Co & Gregg
Inc. The Cuban Government named Interventors to take possession and operate business of the seized
Cuban concerns. The Interventors continued to ship cigars to foreign customers including those to the
US. The former business owners most of whom had fled to the US brought various actions against the
three American Importers for trade mark infringement and for the purchased price of any cigars that
have been shipped to importers from the ceased Cuban plants and that US trademarks claimed by the
foreign owners to be their property.
The Cuban interventors and the Republic of Cuba were allowed to intervene in these actions. Both the
former owners and the interventors claimed some $700,000 allegedly due from the three importers for
post intervention shipment.
As per the date of intervention the three importers owed a total of $477,600 for cigars shipped prior to
intervention. The sum had however been paid to the interventors subsequent to intervention on the
assumption that the interventors were entitled to collect accounts receivable on the intervened
business.
Accounts however later showed that the petitioner had paid $148,600 on account of the pre
intervention payments made under error. The petitioner therefore sought to set off the sum it owed for
post intervention shipment against what was due and recoverable from the interventors.
The issue before the court was whether failure of the respondents to return to the petitioner balance of
the sum due was an act of the government of Cuba precluding an affirmative judgment against the
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of which there was no entitlement to the state immunity.
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respondent, the court held that it was not a public act in the state of Cuba but rather a commercial act
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Although the US abandoned the Absolute Immunity Rule and adopted the Qualified Immunity
Rule In1952 it was not until 1976 that the congress enacted a Foreign Sovereign Immunity Act.
i.
Section 1603 (d) of the FSIA provides that the character of an activity shall be
determined in its nature rather than by reference to its purpose.
ii.
Sec 1605 FSIA provides that a Foreign state shall not be immune from the jurisdiction of
the court of US in any case in which the action is based on a commercial activity carried
on in US by the foreign state or upon an act performed in the US in connection with a
commercial activity in the foreign state elsewhere or upon an act outside the territory of
the US in connection with a commercial activity of the foreign state elsewhere and that
act causes a direct effect in the US.
In 1976, the UK enacted the State Immunity Act to implement the provisions of the 1972
European Convention on the State Immunity. The act adopted the restrictive approach to state
immunity.
i.
Section 1 (1) of the act provides that a foreign state is immune from the jurisdiction of
the court of the UK in respect of specific circumstances provided for under the act.
ii.
Section 3 (1) then provides that a foreign state is not immune as respect proceedings
relating to
a) A commercial transaction entered into by the state or
b) An obligation of the state which by virtue of a contract (whether a commercial
transaction or not) falls to be performed wholly or partly in the UK.
iii.
Section 3 (3) defines “commercial transaction” as follows namely
a) Any contract for the supply of goods or services
b) Any loan or other transaction for the provision of finance and any guarantee or
indemnity in respect of any such transaction or of any other financial obligation
c) Any other transaction or activity (whether of commercial, industrial, financial,
professional or other similar character) into which a state enters or in which it
engages otherwise than in the exercise of sovereign authority.
Whereas there is a growing trend in state practice to extend restrictive immunity to foreign
states the key problem is how one distinguishes from an actus jure imperii from an actus jure
gestionis.
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THE CURRENT POSITION REGARDING STATE IMMUNITY
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It is not always self evident into which category any specific transaction in which a state is
involved falls.
A contract for sale and purchase is generally regarded as a commercial transaction an actus jure
gestionis.
What about if it is a contract for the sale and purchase of military hardware? Is it an exercise of
sovereign authority a transaction in which a private individual cannot be involved.
It used to be thought that assistance would be derived in this task by looking at the purpose for
which a contract was being entered into.
Accordingly in the above example the answer would be given by noting that the object of the
contract was a high state matter, a matter of sovereign authority. However, there has come to
be a general rejection of reliance on the purpose as being incompatible to the requirement with
focus on the nature of the transaction.
See the case of The Trendtex Trading Corporation Ltd, vs. the Central Bank of Nigeria,
CASE
The Trendtex Trading Corporation Ltd, vs. the Central Bank of Nigeria,
Lord Denning MR said that the purpose of a contract is irrelevant to its destination as attracting absolute
or qualified immunity.
In 1975 the CBK of Nigeria issued a letter of credit in favour of the plaintiffs, a Swiss company for the
price of cement to be sold by the plaintiffs to English company which had secured a contract with the
Nigerian Government to supply cement for the construction of an army barracks at Abuja. When under
instruction from the Nigerian Government, the bank refused to honor the letter of credit and to pay for
charges incurred by delay at the port of delivery, the plaintiffs brought an action in personam against
the bank in the English HC. The bank successfully claimed state immunity. The plaintiffs appealed to the
CA. It stated, “In concurrent with the other two judges in the application of the doctrine of restrictive
immunity and so allowing the appeal, LD Denning said, “If the government department goes into
different market places of the world and buys goods of cement, as a commercial transaction, the
government department should be subject to all the rules of the market place. The seller is not concerned
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with the purpose in which the purchase intends to put the goods.”
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In the premises, in determining the distinction between actus jure imperii and actus jure
gestionis one should refer to the nature of the state transaction of the resulting legal
relationships and not to the motive or purposes of the activity of the transaction.
In order to with draw its action from the sphere of actus jure gestionis, a state must be able to
point to some act clearly done within its sovereign authority as an actus jure imperii.
Given the difficulty of making the distinction between the actus jure imperii and actus jure
gestionis there is a recent trend in state practice to turn towards the test of whether an act is
one may be performed by any private person or only by a sovereign.
ACT OF STATE DOCTRINE
Consider
Distinction between Acts of States and States Immunity (Discuss)
Closely related in the practice of some states with the Principles of State Immunity is the Act of
State Doctrine.
Under this doctrine, a state’s legislative, judicial or executive act having force of law within that
states territory are not subject to judicial enquiry by the courts of another state.
In other words the act cannot be challenged in the courts of other states even if they are
contrary to International law.
ILLUSTRATION
Uganda is a sovereign state under prescriptive jurisdiction, adjudicative jurisdiction, enforcement of
executive jurisdiction. When in exercise of its prescriptive jurisdiction and enacts a legislation and no
foreign court can intervene with that act of parliament. One can only intervene if a foreign state suffers
injury at the expense of implementing that law. Kenya cannot intervene at any point. The president of
Uganda has all the authority to ensure Uganda enforces its law. Kenya can practice the right of
diplomatic protection over her citizens of take the matter to the ICJ. If one is aggrieved one should
Procedure Act on section 9 was contrary to Public International Law before amendment as Kenya cannot
review other state laws. Agreements whether with individuals/ IC bind the states & not the
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and have them reviewed with another country. These are laws pursuant within that state only. The Civil
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pursue the remedies available up to the Supreme Court in Uganda. One cannot take laws of one country
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governments as the states is legal persons & not the governments.
The essence of a plea of acts of state doctrine is that an issue is non justiciable i.e. the Municipal
court has no competence to assert jurisdiction at all.
The point here is that the substantive issue is of such a nature that it cannot be the subject of
judicial proceedings before the national court.
The Act of State Doctrine is a bar to the assumptions of jurisdiction because of the subject
matter of the litigation.
The rule is founded against the principle of state sovereignty and non interference in internal
affairs of other states and the presumption being a state is better able to determine the validity
of its own acts vis- a vis its own laws other than the courts of another states.
In American courts the doctrine is viewed more as a matter of constitutional law rather than of
International Law with courts generally exercising judicial restrain vis-a vis the executive in the
matters of foreign policy.
The doctrine was first enunciated in the case of Underhill vs. Hernandez where the US Supreme
Court refused to award damages to an American citizen for his detention by the Venezuelan
armed forces on the ground that the court of one country could not sit in judgment on the act of
the government of another done within its own territory.
Every sovereign state was bound to respect the independence of every other sovereign state.
Instead of looking to the limits of the jurisdiction of national courts as does the state of
immunity doctrine, the act of state doctrine is fundamentally concerned with the prescriptive
jurisdiction of foreign states.
Instead of operating as a jurisdictional principle it functions rather like a choice of law rule, the
result is a courts acceptance of the legitimacy of the foreign states territorial prescriptions and
tested either by international or domestic standards.
State immunity on the other hand is where a national court would have had jurisdiction over the
subject matter of the dispute but is not permitted to exercise it in a particular case because one
of the parties to the dispute is a foreign state or government department.
State Immunity is based in the 1st instance on the identity of the litigant i.e. it is an issue ratione
personae whereas Act of State non justiciability is based on the substance of the disputes i.e. it
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is an issue ratione materiae.
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The Act of State Doctrine may be derived upon by private as well as public litigants. The
doctrine rests upon considerations of International Comity and expedience as well.
To permit the validity of public acts of one sovereign state to be re examined and perhaps
condemned by the court of another state would very certainly imperil the amicable relations
between governments and vex (irritate/annoy) the peace of nations.
Despite their doctrinal differences the Act of State doctrine and the rules of State Immunity are
functionally similar in so far as both differ to foreign sovereigns and compel claimants to appeal
to foreign courts or to submit to diplomacy to protect their interests.
However, there is no immunity from International responsibility where these exists general or
treaty under international law.
In other words no plea of state immunity or acts of states can be made or entertained before an
international tribunal.
PRACTICE QUESTION
a) Discuss the concept of and rationale for the Act of State Doctrine
b) Ms Dereva Mechanics Inc is an Italian Company that had until 1990 a lot of business
establishments in the African Republic of Wenyeji.On June 20th 1990 the Wenyeji
Parliament enacted a law under which all private foreign owned companies with a capital
of over USD $100,000 were nationalized and made the property the Republic of
Wenyenji.M/s Dereva Mechanics Inc had a capital of USD 200,000 only and were involved
in the manufacturing and sale of exotic Italian Furniture.
In August 1990 agents of the Republic of Wenyeji took possession of and confiscated M/s
Dereva Mechanics Inc’s factory and manuctured furniture.In October 1990 ,they shipped
to Italy and the United Kingdom large quantities of the manufactured furniture.In
December 1990 ,M/s Dereva Mechanics Inc commenced suits in both Italy and the UK
seeking declaration that they were the owners of the furniture and that all the sales
proceeds must be paid to them.
While the suits were pending the governments of Italy and the United Kingdom
their cordial mutual relations.
The Foreign Affairs Ministry of the Republic of Wenyeji has asked you as the Head of the
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Republic of Wenyeji and that they looked forward to continuing and further strengthening
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coincidentally issued statements to the effect that they recognized the government of the
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Legal Division to draft a legal opinion to be presented by the Minister at Cabinet meeting
the President has called to discuss the suits in Italy and UK.
Prepare an articulate opinion for the Minister with the support of relevant authorities,
indicating the legal issues involved in this matter and the stance that the Republic of
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Wenyeji should take.
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LECTURE 12: 12TH APRIL 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 10: DIPLOMATIC AND CONSULAR IMMUNITY
Introduction
Foreign relations of states are conducted by state officials or agents through the institution of
diplomatic envoys.
Today the institution of diplomatic representation involves the establishment and maintenance
of permanent missions (Embassies or High Commissions in most countries or as in the case of
the UN and its specialized agencies permanent representations).
Difference between an Embassy and High Commission?
Embassies are for non common wealth countries and High Commissions are for common wealth
countries.
The law relating to diplomatic relations is now codified in the 1961 Vienna Convention on
Diplomatic Relations which entered into force on 24th April 1964.
The convention is composed of both declaratory and constitutive provisions.
The former are those that codify pre existing rules of customary international law which
developed as a result of state practice dating back to the days of the Greek City states.
To emphasize this point the preamble to the convention provides that where the convention
does not cover a particular issue, result is to be heard to rules of customary international law
which are as old as the school of international law system itself.
Diplomatic relations are carried out by diplomatic envoys that are sent as representatives to the
receding state.
Article 14 of the convention divides these representatives into 3 classes:
1. Ambassadors or nuncios accredited to the heads of state and other heads of mission of equivalent
rank.
2. Envoys, ministers and inter nuncios accredited to head of states.
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3. Charge’ d’affaires accredited to ministers of foreign affairs.
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Article 14 1961 Vienna Convention on Diplomatic Relations
1.Heads of mission are divided into three classes, namely:
a) That of ambassadors or nuncios accredited to Heads of State, and other heads of mission of
equivalent rank;
b) That of envoys, ministers and internuncios accredited to Heads of State;
c) That of chargés d’affaires accredited to Ministers for Foreign Affairs.
2. Except as concerns precedence and etiquette, there shall be no differentiation between heads of
mission by reason of their class.
It is for the states concerned to agree upon the class to which the heads of their respective
missions shall be assigned (Article 15).
Article 15
The class to which the heads of their missions are to be assigned shall be agreed between States.
Although there is no difference between heads of mission by a reason to their class there is an
exception as regards precedents and etiquettes.
Ambassadors are considered to be personal representatives of their heads of states and for this
reasons enjoy special honors.
Their chief privilege is that of negotiating with heads of states personally and to that extent can
at all times ask for audience from the head of states to whom they are accredited. They claim
the title of ‘Excellency’ by right.
The 2nd class ministers and envoys accredited to head of states into which also belongs the papal
inter nuncios are not considered to be personal representatives of the heads of the states.
Therefore, they do not enjoy all the special honors of ambassadors have no privilege of treating
the head of states personally and cannot at all times ask for audience with him and receive the
title of Excellency only by courtesy and not as of rights.
The 3rd class differs chiefly in one point than the others in that they are accredited from foreign
minister to foreign minister unlike the others who are accredited from head of state to head of
Under Article 2 of Vienna Convention the establishment of Diplomatic Relations and Missions
depends on mutual consent of the states concerned. International law has no rules as regards
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ESTABLISHMENT OF DIPLOMATIC NATIONS
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state. They therefore do not enjoy so many honors as other diplomatic envoys.
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qualifications of individuals whom a state can appoint as heads of diplomatic missions, states
being competent to act according to discretion while some states have laws that lay down
details requirement as to the knowledge and training which candidates to a permanent
diplomatic post must possess.
Article 2
The establishment of diplomatic relations between States, and of permanent diplomatic missions, takes
place by mutual consent.
The appointment is usually announced to the state in which the individual representative is to
be accredited in official papers known as letters of credence (Lettre de creadence) which are
remitted to the receiving states. These may sometimes be accompanied by documents of full
powers relating to particular negotiations that the representative may be involved in.
Under Article 4 of the convention the receiving states may refuse to receive diplomatic envoys
either
i.
Generally or in respect of a particular mission
ii.
Because a particular envoy is personally accepted.
Article 4
1. The sending State must make certain that the agrément of the receiving State has been given for
the person it proposes to accredit as head of the mission to that State.
2. The receiving State is not obliged to give reasons to the sending State for a refusal of agreement.
The state need not specify the objections or even justify them. Once the receiving state gives its
assent (agre’ment) the accrediting state then proceeds with the formal appointment.
Under Article 9 of the convention at any time receiving states may without obligation to explain
its decision declare an envoy a persona non grata and require that he or she be recalled or his or
her functions be terminated. As a rule a state appoints different individuals as heads of
State that the head of the mission or any member of the diplomatic staff of the mission is persona
non grata or that any other member of the staff of the mission is not acceptable. In any such case,
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Article 9
1. The receiving State may at any time and without having to explain its decision, notify the sending
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diplomatic missions to different states.
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the sending State shall, as appropriate, either recall the person concerned or terminate his functions
with the mission. A person may be declared non grata or not acceptable before arriving in the
territory of the receiving State.
2. If the sending State refuses or fails within a reasonable period to carry out its obligations under
paragraph 1 of this article, the receiving State may refuse to recognize the person concerned as a
member of the mission.
However, a state may appoint the same person as head of its diplomatic missions in more than
one state unless there is any express objection by any of the receiving states (Article 5).
Article 5
1. The sending State may, after it has given due notification to the receiving States concerned, accredit
a head of mission or assign any member of the diplomatic staff, as the case may be, to more than
one State, unless there is express objection by any of the receiving States.
2. If the sending State accredits a head of mission to one or more other States it may establish a
diplomatic mission headed by a chargé d’affaires ad interim in each State where the head of mission
has not his permanent seat.
3. A head of mission or any member of the diplomatic staff of the mission may act as representative of
the sending State to any international organization.
Also two or more states may accredit the same person as head of their diplomatic missions to
another state unless that state rejects (Article 6)
Article 6
Two or more States may accredit the same person as head of mission to another State, unless objection
is offered by the receiving State.
The recognition of governments of states is a conditio sine qua non of the establishment of
Neither does withdrawal or non establishment of diplomatic relations mean non recognition.
There are several states we recognize but cannot afford to have diplomatic relations with them.
FUNCTIONS OF DIPLOMATIC ENVOYS
The essence of diplomatic relations is that state A licenses state B representatives to carry out
political and other functions in state As territory.
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diplomatic relations although the later is not necessarily a consequence of recognition.
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Article 3 of the Vienna Convention provides for functions of diplomatic envoys.
Article 3
1. The functions of a diplomatic mission consist, inter alia, in:
a) Representing the sending State in the receiving State;
b) Protecting in the receiving State the interests of the sending State and of its nationals, within the
limits permitted by international law;
c) Negotiating with the Government of the receiving State;
d) Ascertaining by all lawful means conditions and developments in the receiving State, and reporting
thereon to the Government of the sending State;
e) Promoting friendly relations between the sending State and the receiving State, and developing their
economic, cultural and scientific relations.
2. Nothing in the present Convention shall be construed as preventing the performance of consular functions
by a diplomatic mission.
A head of a permanent diplomatic mission such as Russia represents his home states in the
totality of its international relations of the receiving state. He is the mouth piece of the head of
its state and its foreign minister for communications to be made to the receiving state.
He likewise receives communications from the later and reports them to his home state. His task
is further to ascertain by all lawful means, conditions and developments in the receiving states
and report therefore to his governments.
A 3rd task is the protection in the receiving state of the interests of his home state and its
nationals within the limits permitted by the International Law. It is however for the laws
regulations and practices of its home states and not International Law to prescribe the extent of
the envoys obligation to afford protection to its compatriot.
Besides these regular functions a diplomatic envoy may be charged with other and more
miscellaneous functions such as the promotion of friendly relations between his own state and
the receiving state and the development of economic cultural and scientific relations.
The carrying out of these functions is facilitated by the concept of diplomatic immunities and
privileges from the jurisdiction of the receiving states.
These immunities and privileges are not rights given to diplomatic envoys by international law
but by the law of the receiving states in compliance with an international right belonging to their
home states.
They are rights of the envoys home states rather than of the envoy himself and are granted to
envoys as representatives of their states because they could not exercise their functions
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properly unless they enjoyed such privileges.
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In other words the basis of the diplomatic envoys immunities and privileges is functional. Were
the diplomatic envoys liable to ordinary legal and political interference, and accordingly more or
less dependent on the good will of the receiving state they might be influenced by personal
consideration of safety and comfort to such a degree that would materially compromise their
representation and functions.
Hence, their immunities and privileges are indispensible attributes of the diplomatic functions.
Indeed the preamble to the Vienna convention says that the purposes of such immunity and
principle is not to benefit individuals but to ensure the efficient performance of the functions of
diplomatic missions as representing states.
POSITIONS OF DIPLOMATIC ENVOYS AND MISSIONS
There are two popular myths about diplomatic envoys and their immunities which must be de
banked.
1. The diplomatic mission premises are foreign territories
2. The diplomatic envoy can incur no legal liability in the receiving state
The 1st myth is confusion between territory or property and jurisdiction over it and it is
important to clarify it because it has sometimes arisen over airships and aircrafts.
The building occupied by a foreign diplomatic mission and the land on which it stands are part of
the territory of the receiving state, and therefore under the jurisdiction of that state although
they may be the property of the sending state.
However, the members of the mission and their activities in the mission premises are primarily
under the control and jurisdiction for the sending states.
International Law avoids conflicts of jurisdiction between the sending states and the receiving
states by laying down rules to cover the entire field of diplomatic relations. Accordingly, the
premises of the mission are inviolable.
i)
This inviolability has two distinct aspects
Immunity from any form of law enforcement by the authorities of the receiving state such as
entry, such requisition or even service of legal documents
The special duty “to take all appropriate steps to protect the premises of the mission against any
intrusion or damage and to prevent any disturbance of the keys of the mission or impairment of
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its dignity.” (Article 22).
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ii)
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Article 22
1. The premises of the mission shall be inviolable. The agents of the receiving State may not enter
them, except with the consent of the head of the mission.
2. The receiving State is under a special duty to take all appropriate steps to protect the premises of
the mission against any intrusion or damage and to prevent any disturbance of the peace of the
mission or impairment of its dignity.
3. The premises of the mission, their furnishings and other property thereon and the means of
transport of the mission shall be immune from search, requisition, attachment or execution.
The degree of the protection provided must be proportionate to the threat. Most charges of
breach of duty concerned failure to prevent attack or prevent intrusion following special request
from the embassy.
The inviolability of diplomatic premises was firmly held by the ICJ in the case concerning US
Diplomatic v Consular Staff in Tehran (1980 ICJ report 1993)
CASE
US Diplomatic v Consular Staff in Tehran (1980 ICJ report 1993)
The first phase of the events underlying the Applicant's claims covers the armed attack on the United
States Embassy carried out on 4 November 1979 by Muslim Student Followers of the Imam's Policy
(further referred to as "the militants" in the Judgment), the overrunning of its premises, the seizure of
its inmates as hostages, the appropriation of its property and archives, and the conduct of the Iranian
authorities in the face of these occurrences.
He described the Embassy as a "centre of espionage", declared that the hostages would (with some
exceptions) remain "under arrest" until the United States had returned the former Shah and his
property to Iran, and forbade all negotiation with the United States on the subject. Once organs of the
Iranian State had thus given approval to the acts complained of and decided to perpetuate them as a
means of pressure on the United States, those acts were transformed into acts of the Iranian State: the
militants became agents of that State, which itself became internationally responsible for their acts.
During the six months which ensued, the situation underwent no material change: the Court's Order of
15 December 1979 was publicly rejected by Iran, while the Ayatollah declared that the detention of the
hostages would continue until the new Iranian parliament had taken a decision as to their fate.
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On 29 November 1979 the United States of America had instituted proceedings against Iran in a case
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The second phase of the events underlying the United States' claims comprises the whole series of facts
which occurred following the occupation of the Embassy by the militants. Though it was the duty of the
Iranian Government to take every appropriate step to end the infringement of the inviolability of the
Embassy premises and staff, and to offer reparation for the damage, it did nothing of the kind. Instead,
expressions of approval were immediately heard from numerous Iranian authorities. Ayatollah Khomeini
himself proclaimed the Iranian State's endorsement of both the seizure of the premises and the
detention of the hostages.
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arising out of the situation at its Embassy in Tehran and Consulates at Tabriz and Shiraz, and the seizure
and detention as hostages of its diplomatic and consular staff in Tehran and two more citizens of the
United States. The United States having at the same time requested the indication of provisional
measures, the Court, by a unanimous Order of 15 December 1979, indicated, pending final judgment,
that the Embassy should immediately be given back and the hostages .
The United States filed a Memorial, and on 18, 19 and 20 March 1980 the Court held a public hearing at
the close of which the United States, in its final submissions, requested it to adjudge and declare, inter
alia, that the Iranian Government had violated its international legal obligations to the United States and
must: ensure the immediate release of the hostages; afford the United States diplomatic and consular
personnel the protection and immunities to which they were entitled (including immunity from criminal
jurisdiction) and provide them with facilities to leave Iran; submit the persons responsible for the crimes
committed to the competent Iranian authorities for prosecution, or extradite them to the United States;
and pay the United States reparation, in a sum to be subsequently determined by the Court.
Iran took no part in the proceedings. It neither filed pleadings nor was represented at the hearing, and
no submissions were therefore presented on its behalf. Its position was however defined in two letters
addressed to the Court by its Minister for Foreign Affairs on 9 December 1979 and16 March 1980
respectively. In these the Minister maintained inter alia that the Court could not and should not take
cognizance of the case.
The Court expresses regret that Iran did not appear before it to put forward its arguments. The absence
of Iran from the proceedings brought into operation Article 53 of the Statute, under which the Court is
required, before finding in the Applicant's favour, to satisfy itself that the allegations of fact on which
the claim is based are well founded.
The Court is therefore led to conclude that on 4 November 1979 the Iranian authorities were fully aware
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The Court points out that the conduct of the militants on that occasion could be directly attributed to
the Iranian State only if it were established that they were in fact acting on its behalf. The information
before the Court did not suffice to establish this with due certainty. However, the Iranian State - which,
as the State to which the mission was accredited, was under obligation to take appropriate steps to
protect the United States Embassy - did nothing to prevent the attack, stop it before it reached its
completion or oblige the militants to withdraw from the premises and release the hostages. This
inaction was in contrast with the conduct of the Iranian authorities on several similar occasions at the
same period, when they had taken appropriate steps. It constituted, the Court finds, a clear and serious
violation of Iran's obligations to the United States under Articles 22 (2), 24, 25, 26, 27 and 29 of the 1961
Vienna Convention on Diplomatic Relations, of Articles 5 and 36 of the 1963 Vienna Convention on
Consular Relations, and of Article 11 (4) of the 1955 Treaty. Further breaches of the 1963 Convention
had been involved in failure to protect the Consulates at Tabriz and Shiraz.
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In that respect the Court observes that it has had available to it, in the documents presented by the
United States, a massive body of information from various sources, including numerous official
statements of both Iranian and United States authorities. This information, the Court notes, is wholly
concordant as to the main facts and has all been communicated to Iran without evoking any denial. The
Court is accordingly satisfied that the allegations of fact on which the United States based its claim were
well founded.
PUBLIC INTERNATIONAL LAW-GPR 301
of their obligations under the conventions in force, and also of the urgent need for action on their part,
that they had the means at their disposal to perform their obligations, but that they completely failed to
do so.
The Iranian authorities' decision to continue the subjection of the Embassy to occupation, and of its staff
to detention as hostages, gave rise to repeated and multiple breaches of Iran's treaty obligations,
additional to those already committed at the time of the seizure of the Embassy (1961 Convention:
Arts. 22, 24, 25, 26, 27 and 29 1963 Convention: inter alia, Art. 33; 1955 Treaty, Art. II (4)).
With regard to the Charge d'affaires and the two other members of the United States mission who have
been in the Iranian Ministry of Foreign Affairs since 4 November 1979 the Court finds that the Iranian
authorities have withheld from them the protection and facilities necessary to allow them to leave the
Ministry in safety. Accordingly, it appears to the Court that in their respect there have been breaches of
Articles 26 and 29 of the 1961 Vienna Convention.
Taking note, furthermore, that various Iranian authorities have threatened to have some of the hostages
submitted to trial before a court, or to compel them to bear witness, the Court considers that, if put into
effect, that intention would constitute a breach of Article 31 of the same Convention.
Possible existence of special circumstances (paras. 80-89)
The Court considers that it should examine the question whether the conduct of the Iranian
Government might be justified by the existence of special circumstances, for the Iranian Minister for
Foreign Affairs had alleged in his two letters to the Court that the United States had carried out criminal
activities in Iran. The Court considers that, even if these alleged activities could be considered as proven,
they would not constitute a defence to the United States' claims, since diplomatic law provides the
possibility of breaking off diplomatic relations, or of declaring persona non "rata members of diplomatic
or consular missions who may be carrying on illicit activities. The Court concludes that the Government
of Iran had recourse to coercion against the United States Embassy and its staff instead of making use of
the normal means at its disposal.
International responsibility (paras. 90-92)
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At the same time the Court considers it essential to reiterate the observations it made in its Order of 15
December 1979 on the importance of the principles of international law governing diplomatic and
consular relations. After stressing the particular gravity of the case, arising out of the fact that it is not
any private individuals or groups that have set at naught the inviolability of an embassy, but the very
government of the State to which the mission is accredited, the Court draws the attention of the entire
international community to the irreparable harm that may be caused by events of the kind before the
Court. Such events cannot fail to undermine a carefully constructed edifice of law the maintenance of
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The Court finds that Iran, by committing successive and continuing breaches of the obligations laid upon
it by the Vienna Conventions of 1961 and 1963, the 1955 Treaty, and the applicable rules of general
international law, has incurred responsibility towards the United States. As a consequence, there is an
obligation on the part of the Iranian State to make reparation for the injury caused to the United States.
Since, however, the breaches are still continuing, the form and amount of such reparation cannot yet be
determined.
PUBLIC INTERNATIONAL LAW-GPR 301
which is vital for the security and well-being of the international community.
United States operation in Iran on 24-25 April 1980 (paras. 93 and 94)
With regard to the operation undertaken in Iran by United States military units on 24-25 April 1980, the
Court says that it cannot fail to express its concern. It feels bound to observe that an operation
undertaken in those circumstances, from whatever motive, is of a kind calculated to undermine respect
for the judicial process in international relations. Nevertheless, the question of the legality of that
operation can have no bearing on the evaluation of Iran's conduct on 4 November 1979. The findings
reached by the Court are therefore not affected by that operation.
Judgement
1. The Court Decided that the Islamic Republic of Iran, by the conduct which the Court has set out in
this Judgment, has violated in several respects, and is still violating, obligations owed by it to the
United States of America under international conventions in force between the two countries, as
well as under long-established rules of general international law;
2. That the violations of these obligations engage the responsibility of the Islamic Republic of Iran
towards the United States of America under international law;
3. That the Government of the Islamic Republic of Iran must immediately take all steps to redress the
situation resulting from the events of 4 November 1979 and what followed from these events, and
to that end:
a) must immediately terminate the unlawful detention of the United States Charge d'affaires
and other diplomatic and consular staff and other United States nationals now held hostage
in Iran, and must immediately release each and every one and entrust them to the
protecting Power (Article 45 of the 1961 Vienna Convention on Diplomatic Relations);
b) must ensure that all the said persons have the necessary means of leaving Iranian territory,
including means of transport;
c) must immediately place in the hands of the protecting Power the premises, property,
archives and documents of the United States Embassy in Tehran and of its Consulates in
Iran;
4. That no member of the United States diplomatic or consular staff may be kept in Iran to be
Government of the United States of America for the injury caused to the latter by the events of 4
November 1979 and what followed from these events;
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5. That the Government of the Islamic Republic of ban is under an obligation to make reparation to the
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subjected to any form of judicial proceedings or to participate in them as a witness;
PUBLIC INTERNATIONAL LAW-GPR 301
6. That the form and amount of such reparation, failing agreement between the Parties, shall be
settled by the Court, and reserves for this purpose the subsequent procedure in the case.
The status of mission premises depends on their being used for the purposes of the missions.
Where therefore the buildings cease to be used for the purposes of the mission the inviolability
lapses and the receding state is bound only by the lesser obligation to “respect and protect”
them under Article 45 of the convention.
Article 45
If diplomatic relations are broken off between two States, or if a mission is permanently or temporarily
recalled:
a) The receiving State must, even in case of armed conflict, respect and protect the premises of the
mission, together with its property and archives;
b) The sending State may entrust the custody of the premises of the mission, together with its
property and archives, to a third State acceptable to the receiving State;
c) The sending State may entrust the protection of its interests and those of its nationals to a third
State acceptable to the receiving State.
Kenya broke diplomatic relations with Libya in 1950. Libyan embassy was protected until Kenya
resumed relations with Libya
This inviolability does not however make the premises foreign territory or take them out of the
rich of local law for many purposes.
For instance a commercial transaction in an embassy may be governed by the local law
marriages may be celebrated there only if conditions laid down by the local law are made and a
child born in it will unless his father has diplomatic status to acquire the local nationality.
Furthermore the mission may not abuse the hospitality of the receiving state by using the
premises to breach the local law.
Accordingly under Article 41 (3) of the Convention the premises of the mission must not be used
in any manner incompatible with the functions of the mission as laid down in the convention or
by other rules of general international law and an offence against the local law committed on
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Article 41
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving State. They also have
a duty not to interfere in the internal affairs of that State.
2. All official business with the receiving State entrusted to the mission by the sending State shall be
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the premises is subject to any immunity of the offender punishable by local courts.
PUBLIC INTERNATIONAL LAW-GPR 301
conducted with or through the Ministry for Foreign Affairs of the receiving State or such other
ministry as may be agreed.
3. The premises of the mission must not be used in any manner incompatible with the functions of the
mission as laid down in the present Convention or by other rules of general international law or by
any special agreements in force between the sending and the receiving State.
Besides, building developments by foreign governments in respect by diplomatic premises is
subject to planning permission from the authorities of the receiving state.
The second bit is confusion between liability and immunity. Although Article 29 of the
convention provides that the person of the diplomatic envoy shall be inviolable, that he shall
not be subject to any form of arrest or detention and that the receiving state shall treat him
with due respect and take all appropriate steps to prevent any attack on his person freedom or
dignity.
Article 29
The person of a diplomatic agent shall be inviolable. He shall not be liable to any form of arrest or
detention. The receiving State shall treat him with due respect and shall take all appropriate steps to
prevent any attack on his person, freedom or dignity.
The diplomatic envoy is not exempt from legal liability but only from court proceedings in the
receiving state.So he may when his diplomatic status ceases be punished or sued in respect of
any criminal or civil liability that he has incurred.
The presumption of the privileges he enjoys is that he acts and behaves in such a manner as
harmonizes with the internal order of the receiving state whose laws and regulations is under a
duty to respect.
Hence in the case of a serious offence or misconduct the sending state may waive immunity in
which case the diplomatic envoy is exposed to proceedings to which his acts have made him
liable or the receiving state may declare him persona non grata and ask for his early departure
from the country.
The only exception, to the liability of the envoy is in case of his official acts for which he can
The diplomatic envoys immunity is not immunity from legal liability but immunity from suit.
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is absolute and permanent.
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incur no liability under the local law and his immunity from any proceedings in respect of them
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Beneficiaries of Diplomatic Immunity
Who are the beneficiaries apart from diplomatic envoy?
The diplomatic envoy is the chief beneficiary of diplomatic privileges and immunities.
The inviolability of the diplomatic envoy both in peace time and between peoples at war is a
rule which goes back more than three thousand years.
Wherever in the world relations grew up between separate people, actually or potentially
hostile the duty to give special protection to the envoy who bore messages was observed and
enforced by sanctions which were in origin religious.
During the 16th century the inviolability of the ambassador and his immunity from criminal
jurisdiction became firmly established as a basic rule of International Law.
The personal inviolability of the diplomatic envoy now codified under Article 29 of the
convention comprises two aspects
1) Immunity from any form of law enforcement action such as arrest, search or the taking of blood or
other samples.
2) The duty to accord special protection by taking all appropriate steps to prevent any attack on his
person freedom or dignity.
Under Article 31 of the Convention the immunity from criminal jurisdiction of a diplomatic
agent has no exceptions reflecting the rule established by the doctrine and practice of
International Law that receding states have no right in any circumstances whatever to prosecute
2.
3.
4.
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1.
Article 31
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving State. He shall
also enjoy immunity from its civil and administrative jurisdiction, except in the case of:
a) A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the purposes of the
mission;
b) An action relating to succession in which the diplomatic agent is involved as executor,
administrator, heir or legatee as a private person and not on behalf of the sending State;
c) An action relating to any professional or commercial activity exercised by the diplomatic
agent in the receiving State outside his official functions.
A diplomatic agent is not obliged to give evidence as a witness.
No measures of execution may be taken in respect of a diplomatic agent except in the cases coming
under subparagraphs (a), (b) and (c) of paragraph 1 of this article, and provided that the measures
concerned can be taken without infringing the inviolability of his person or of his residence.
The immunity of a diplomatic agent from the jurisdiction of the receiving State does not exempt him
from the jurisdiction of the sending State.
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and punish diplomatic agents.
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The only actions open to the receiving state are political in character namely to draw the facts to
the attention of the head of the mission in the expectation of a reprimand by him or to ask for a
waiver of immunity or withdrawal of the offender by the sending state or in serious cases to
expressly declare him persona non grata and have his appointment terminated by the sending
state.
Immunity from the civil and administrative jurisdiction of the receiving state is subject to three
exceptions. Namely
1. A real action relating to private immovable property in the territory of the receiving state not held
by the envoy on behalf of his state and for the purposes of the mission. Envoys who fall in love with
the country therefore buy property, this is not held on behalf of his state or used for the
commission, if a claim arises then the diplomatic envoy cannot plead immunity if a suit is filed.)
2. An action relating to succession in which the diplomatic envoy is involved as executor,
administrator, heir or legatee as a private person. A will as a private person, a suit arises on
disinheritance.
3. An action relating to any professional or commercial activity exercised by the diplomatic envoy
outside his official functions.
However, in the last exception it should be noted that Article 42 of the Convention bars a
diplomatic envoy from practicing a professional or commercial activity or personal profit in the
receiving state.
Article 42
A diplomatic agent shall not in the receiving State practice for personal profit any professional or
commercial activity.
Otherwise a diplomatic envoy cannot be sued nor arrested for debts incurred in the receiving
state nor can his furniture, vehicles and the like.
The envoy is also immune from execution except where judgment has been obtained under any
of the three exceptions above and provided that execution does not infringe the inviolability of
Besides, a diplomatic agent is not under any legal obligation to give evidence as a witness.
Under Article 37 several members of a diplomatic mission are entitled to the immunities and
privileges specified in the convention.
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his person of residence.
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The members of the family of a diplomatic envoy forming part of his household if not nationals
of the receding state are entitled to full diplomatic immunities and privileges.
Members of the administrative and technical staff and members of their families forming part of
their respective households enjoy full immunities and privileges with only two exceptions
namely
1. Their civil immunity is limited to act performed in the course of their duties
2. Their right to duty free import is limited to the time of their first arrival in their receiving state.
1.
2.
3.
4.
Article 37
The members of the family of a diplomatic agent forming part of his household shall, if they are not
nationals of the receiving State, enjoy the privileges and immunities specified in articles 29 to 36.
Members of the administrative and technical staff of the mission, together with members of their
families forming part of their respective households, shall, if they are not nationals of or
permanently resident in the receiving State, enjoy the privileges and immunities specified in articles
29 to 35, except that the immunity from civil and administrative jurisdiction of the receiving State
specified in paragraph 1 of article 31 shall not extend to acts performed outside the course of their
duties. They shall also enjoy the privileges specified in article 36, paragraph 1, in respect of articles
imported at the time of first installation.
Members of the service staff of the mission who are not nationals of or permanently resident in the
receiving State shall enjoy immunity in respect of acts performed in the course of their duties,
exemption from dues and taxes on the emoluments they receive by reason of their employment and
the exemption contained in article 33.
Private servants of members of the mission shall, if they are not nationals of or permanently
resident in the receiving State, be exempt from dues and taxes on the emoluments they receive by
reason of their employment. In other respects, they may enjoy privileges and immunities only to the
extent admitted by the receiving State. However, the receiving State must exercise its jurisdiction
over those persons in such a manner as not to interfere unduly with the performance of the
functions of the mission.
Members of the service staff of the mission i.e. drivers, security guards, cooks and cleaner who
are not nationals or permanent residence of the receiving state enjoy immunity only in respect
of acts performed in the course of their official duties exemption from use and taxes on their
wages and exemptions from social security laws.
Private servants of members of the mission who are not nationals of permanent residents of the
receiving state are exempt from dues and taxes on their wages and on condition of cover
In other respects they may enjoy immunity and privileges only to the extent admitted by the
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receiving state.
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elsewhere from social security laws.
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Under the convention classification of diplomatic staff is determined unilaterally by the sending
state so that in the absence of any object set of criteria a receiving state suspecting over a
classification has no firm basis of protesting.
Article 38 of the Convention limits diplomats who are nationals or permanent residents of the
receiving state to immunity from jurisdiction and inviolability in both cases only for official acts
performed in the exercise of their functions.
Junior staff and private servants who are nationals or permanent residence have no immunities
or privileges. In general such staffs are not notified to the receiving state at all.
Article 38
1. Except insofar as additional privileges and immunities may be granted by the receiving State, a
diplomatic agent who is a national of or permanently resident in that State shall enjoy only
immunity from jurisdiction, and inviolability, in respect of official acts performed in the exercise of
his functions.
2. Other members of the staff of the mission and private servants who are nationals of or permanently
resident in the receiving State shall enjoy privileges and immunities only to the extent admitted by
the receiving State. However, the receiving State must exercise its jurisdiction over those persons in
such a manner as not to interfere unduly with the performance of the functions of the mission.
Waiver of Immunities and Privileges
Immunity from the jurisdiction of the court does not mean that the holder of the immunity is
above the law.
The obligations of municipal law remain binding on him but are only unenforceable because of
his status.
Consequently the immunities and privileges can be waived there by changing an unenforceable
obligation into an enforceable one.
The immunities and privileges are conferred in the interest of and belong to the sending state
and can be waived only by that state.
Hence Article 32 of the Convention provides that waiver of immunity may be made only by the
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Article 32
1. The immunity from jurisdiction of diplomatic agents and of persons enjoying immunity under article
37 may be waived by the sending State.
2. Waiver must always be express.
3. The initiation of proceedings by a diplomatic agent or by a person enjoying immunity from
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sending states and must be express.
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jurisdiction under article 37 shall preclude him from invoking immunity from jurisdiction in respect
of any counterclaim directly connected with the principal claim.
4. Waiver of immunity from jurisdiction in respect of civil or administrative proceedings shall not be
held to imply waiver of immunity in respect of the execution of the judgement, for which a separate
waiver shall be necessary.
The article recognizes that the purpose of immunity is to ensure the unhindered performance of
the diplomatic envoy duties and that the immunity is therefore due to the state of which the
envoy acts rather than the person or the envoy.
The sending state may however delegate authority in the matter to its head of mission usually
after consultation of the receiving state and may also give waivers in advance of particular
proceedings.
The article also specifies that the institution of a suit by a person enjoying immunity shall
amount to a “waiver in the face of the court” i.e. it shall preclude a plea of immunity in any
counter claims directly connected to the principle claim.
Whereas a waiver of immunity in a court of 1st instance also covers appeals from the judgments
of that court it does not entail a waiver of immunity from enforcement of the judgment.
A separate waiver is necessary before execution can be levied against the property of the envoy
in order to satisfy an unpaid judgment date.
In most cases, a state which waives immunity from jurisdiction will be prepared to carry out an
adverse judgment.
Duration of Privileges and Immunities
Customary international law relating to the commencement and termination of immunities and
privileges has been codified in Article 39 of the Convention.
Immunities begin at the moment of entry by the diplomatic envoy into the territory of the
receiving state en route to his post of if already present from the moment appropriate ministry
in the receiving state is notified of his approval.
When the appointment is terminated immunities and privileges cease to apply when the envoy
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leaves the receiving state or after a reasonable period even in the case of armed conflict.
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Article 39 (2) of the convention provides that with respect to acts performed to the exercise of
his functions as a member of the mission immunity continues to apply even after he is no longer
entitled to it.
In other words immunity for official acts subsists indefinitely.
A plaintiff barred by immunity may sue a diplomat in his home state where he has jurisdiction or
may lay the matter before his own government for his claim to be followed through diplomatic
channels.
This Article 39 also provides for a reasonable period of continued immunity for members of the
family in the case of a diplomatic envoys death on his post.
Article 39
1. Every person entitled to privileges and immunities shall enjoy them from the moment he enters the
territory of the receiving State on proceeding to take up his post or, if already in its territory, from
the moment when his appointment is notified to the Ministry for Foreign Affairs or such other
ministry as may be agreed.
2. When the functions of a person enjoying privileges and immunities have come to an end, such
privileges and immunities shall normally cease at the moment when he leaves the country, or on
expiry of a reasonable period in which to do so, but shall subsist until that time, even in case of
armed conflict. However, with respect to acts performed by such a person in the exercise of his
functions as a member of the mission, immunity shall continue to subsist.
3. In case of the death of a member of the mission, the members of his family shall continue to enjoy
the privileges and immunities to which they are entitled until the expiry of a reasonable period in
which to leave the country.
4. In the event of the death of a member of the mission not a national of or permanently resident in
the receiving State or a member of his family forming part of his household, the receiving State shall
permit the withdrawal of the movable property of the deceased, with the exception of any property
acquired in the country the export of which was prohibited at the time of his death. Estate,
succession and inheritance duties shall not be levied on movable property the presence of which in
the receiving State was due solely to the presence there of the deceased as a member of the
mission or as a member of the family of a member of the mission.
CONSULAR IMMUNITY
sending state rather than diplomatic functions. Accordingly they are not diplomatic envoys.
Consuls are concerned with international economic relations of states rather than their political
relations.
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Consuls are agents of a state in a foreign country concerned with the commercial interest of the
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Although consular relations may also be tacitly established through the consent to establish
diplomatic relations, the opposite case is not common i.e. consular relations are independent of
diplomatic relations.
The establishment of consular relations as well as the establishment of the consular post on the
territory of the receiving state takes place by mutual consent.
In particular the approval of the receiving state is necessary for the establishment of the seat of
the consular post, its classification, the size of the consular staff and the consular district.
The number of consular posts depends on the consular needs of each particular state i.e. a state
with a great no, of its citizens in another state may have a greater no. of consulates in that state
than the later has on the territory of the former.
The consul must have the authority of the sending state (his commission) and the authorization
of the receiving state referred to as an exequator in order to carry out his functions.
The functions, immunities and privileges of consular officers are regulated by the 1963 Vienna
Convention on Consular relations. (Exam).
Functions of the consular offices. Article 5 of the convention lists the functions of the consular
offices. These include
i.
Protecting in the receiving state the interests of the sending states and of its nationals furthering the
development of commercial, economic, cultural and scientific relations
ii.
Issuing passports, visas and travel documents
iii.
Helping and assisting nationals of the sending state.
iv.
Exercising rights of supervision and inspection of vessels and aircrafts the sending states
(Wildenhus) and extending the necessary assistants to such vessels and aircrafts and their crews
including conducting investigations and settling disputes between the masters and crews or
passengers.
v.
The attestation and legalization of signatures, examination of witnesses and administration of oath
for the purpose of procuring evidence for the courts and other authorities of the sending state.
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Consular functions consist in:
a) protecting in the receiving State the interests of the sending State and of its nationals, both
individuals and bodies corporate, within the limits permitted by international law;
b) furthering the development of commercial, economic, cultural and scientific relations between
the sending State and the receiving State and otherwise promoting friendly relations between
them in accordance with the provisions of the present Convention;
c) ascertaining by all lawful means conditions and developments in the commercial, economic,
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Article 5
Consular Functions
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d)
e)
f)
g)
h)
i)
j)
k)
l)
m)
cultural and scientific life of the receiving State, reporting thereon to the Government of the
sending State and giving information to persons interested;
issuing passports and travel documents to nationals of the sending State, and visas or
appropriate documents to persons wishing to travel to the sending State;
helping and assisting nationals, both individuals and bodies corporate, of the sending State;
acting as notary and civil registrar and in capacities of a similar kind, and performing certain
functions of an administrative nature, provided that there is nothing contrary thereto in the
laws and regulations of the receiving State;
safeguarding the interests of nationals, both individuals and bodies corporate, of the sending
States in cases of succession mortis causa in the territory of the receiving State, in accordance
with the laws and regulations of the receiving State;
safeguarding, within the limits imposed by the laws and regulations of the receiving State, the
interests of minors and other persons lacking full capacity who are nationals of the sending
State,particularly where any guardianship or trusteeship is required with respect to such
persons;
subject to the practices and procedures obtaining in the receiving State, representing or
arranging appropriate representation for nationals of the sending State before the tribunals and
other authorities of the receiving State, for the purpose of obtaining, in accordance with the
laws and regulations of the receiving State, provisional measures for the preservation of the
rights and interests of these nationals,where, because of absence or any other reason, such
nationals are unable at the proper time to assume the defence of their rights and interests;
transmitting judicial and extrajudicial documents or executing letters rogatory or commissions
to take evidence for the courts of the sending State in accordance with international
agreements in force or,in the absence of such international agreements, in any other manner
compatible with the laws and regulations of the receiving State;
exercising rights of supervision and inspection provided for in the laws and regulations of the
sending State in respect of vessels having the nationality of the sending State, and of aircraft
registered in that State, and in respect of their crews;
extending assistance to vessels and aircraft mentioned in subparagraph (k) of this article, and to
their crews, taking statements regarding the voyage of a vessel, examining and stamping the
ship’s papers, and, without prejudice to the powers of the authorities of the receiving State,
conducting investigations into any incidents which occurred during the voyage, and settling
disputes of any kind between the master, the officers and the seamen insofar as this may be
authorized by the laws and regulations of the sending State;
performing any other functions entrusted to a consular post by the sending State which are not
prohibited by the laws and regulations of the receiving State or to which no objection is taken by
the receiving State or which are referred to in the international agreements in force between
the sending State and the receiving State.
Under Article 28 of the convention the receiving state must accord full facilities for the
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Article 28
Facilities for the work of the consular post
The receiving State shall accord full facilities for the performance of the functions of the consular post.
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performance of the functions of the consular posts.
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However, the receiving states reserves the rights at any time even before arrival and without
reasons having to be given to declare the head of a consular post or other consular officer a
persona non grata (Article 23).
1.
2.
3.
4.
Article 23
Persons declared “non grata”
The receiving State may at any time notify the sending State that a consular officer is persona non
grata or that any other member of the consular staff is not acceptable. In that event, the sending
State shall, as the case may be, either recall the person concerned or terminate his functions with
the consular post.
If the sending State refuses or fails within a reasonable time to carry out its obligations under
paragraph 1 of this article, the receiving State may, as the case may be, either withdraw the
exequatur from the person concerned or cease to consider him as a member of the consular staff.
A person appointed as a member of a consular post may be declared unacceptable before arriving in
the territory of the receiving State or, if already in the receiving State, before entering on his duties
with the consular post. In any such case, the sending State shall withdraw his appointment.
In the cases mentioned in paragraphs 1 and 3 of this article, the receiving State is not obliged to
give to the sending State reasons for its decision.
Although consuls do not enjoy the positions of the diplomatic envoys being appointed by foreign
states and having received the exequatur they are publicly recognized by the receiving states as
agents of the sending state although for a limited no. of tasks and for local purposes only.
The official position of consuls however does not involve direct interaction to the government of
the receiving state.
They are appointed for local purposes only and have direct interactions with local authorities
only.
If they desire to approach the central government itself, they normally do so through their
sending states diplomatic envoy to whom they are subordinate.
Accordingly their immunities and privileges are very limited. Although the receiving states must
give consular officials’ premises special protection only to consular immunities are generally
recognized in customary International Law namely
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2. The immunity of consuls for their official act.
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1. The inviolability of consular archives and premises
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Articles 32 of the Convention provide that consular premises are exempt from all taxes other
than dues representing payments for specific services rendered and all articles to be used by the
consular post are an exempt from customs duties.
Article 32
Exemption from taxation of consular premises
1. Consular premises and the residence of the career head of consular post of which the sending State
or any person acting on its behalf is the owner or lessee shall be exempt from all national, regional
or municipal dues and taxes whatsoever, other than such as represent payment for specific services
rendered.
2. The exemption from taxation referred to paragraph 1 of this article shall not apply to such dues and
taxes if, under the law of the receiving State, they are payable by the person who contracted with
the sending State or with the person acting on its behalf.
Article 31 provides for the inviolability of consular premises. This inviolability includes 2
obligations:
1) A special obligation to protect such premises by taking all appropriate means in order to prevent any
act or violence against the consular premises or any disturbance of its peace or impairment or its
dignity.
2) The duty not to enter the part of the premises used exclusively for the purpose of the work of the
post except with the consent with the head of the consular post or of his designee or of the head of
3.
4.
A specific exception to this rule is provided for under Article 2 under which the consent may be
assumed in cases of emergency requiring prompt protective action. In 1979, there was a fire in
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1.
2.
Article 31
Inviolability of the consular premises
Consular premises shall be inviolable to the extent provided in this article.
The authorities of the receiving State shall not enter that part of the consular premises which is used
exclusively for the purpose of the work of the consular post except with the consent of the head of
the consular post or of his designee or of the head of the diplomatic mission of the sending State.
The consent of the head of the consular post may, however, be assumed in case of fire or other
disaster requiring prompt protective action.
Subject to the provisions of paragraph 2 of this article, the receiving State is under a special duty to
take all appropriate steps to protect the consular premises against any intrusion or damage and to
prevent any disturbance of the peace of the consular post or impairment of its dignity.
The consular premises, their furnishings, the property of the consular post and its means of
transport shall be immune from any form of requisition for purposes of national defence or public
utility. If expropriation is necessary for such purposes, all possible steps shall be taken to avoid
impeding the performance of consular functions, and prompt, adequate and effective compensation
shall be paid to the sending State.
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the sending state diplomatic mission.
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the Ghanaian mission in International house and the mission was not present to give consent to
fight the fire.
The inviolability of consular premises is not therefore not absolute as is the case of diplomatic
premises.
Under the provisions of Article 33 consular archives and documents are inviolable at all times
and wherever they may be. This inviolability is absolute even in the event of armed conflict.
Article 33
Inviolability of the consular archives and documents
The consular archives and documents shall be inviolable at all times and wherever they may be.
Under Article 35 the official correspondence of the consular post is also inviolable and the post
must be allowed freedom of communication for all official purposes. Consular couriers and bags
may be used in communicating with the government diplomatic mission or other consular posts
of the sending posts. The consular bag must be neither opened nor retained and in the
performance of his functions the consular courier must be protected by the receiving state. He
2.
3.
4.
5.
number of packages constituting the consular bag. Except with the consent of the receiving State he
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1.
Article 35
Freedom of communication
The receiving State shall permit and protect freedom of communication on the part of the consular
post for all official purposes. In communicating with the Government, the diplomatic missions and
other consular posts, wherever situated, of the sending State, the consular post may employ all
appropriate means, including diplomatic or consular couriers, diplomatic or consular bags and
messages in code or cipher. However, the consular post may install and use a wireless transmitter
only with the consent of the receiving State.
The official correspondence of the consular post shall be inviolable. Official correspondence means
all correspondence relating to the consular post and its functions.
The consular bag shall be neither opened nor detained. Nevertheless, if the competent authorities
of the receiving State have serious reason to believe that the bag contains something other than the
correspondence, documents or articles referred to in paragraph 4 of this article, they may request
that the bag be opened in their presence by an authorized representative of the sending State. If
this request is refused by the authorities of the sending State, the bag shall be returned to its place
of origin.
The packages constituting the consular bag shall bear visible external marks of their character and
may contain only official correspondence and documents or articles intended exclusively for official
use.
The consular courier shall be provided with an official document indicating his status and the
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enjoys personal inviolability and cannot be arrested or detained.
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shall be neither a national of the receiving State, nor, unless he is a national of the sending State, a
permanent resident of the receiving State. In the performance of his functions he shall be protected
by the receiving State. He shall enjoy personal inviolability and shall not be liable to any form of
arrest or detention.
6. The sending State, its diplomatic missions and its consular posts may designate consular couriers ad
hoc. In such cases the provisions of paragraph 5 of this article shall also apply except that the
immunities therein mentioned shall cease to apply when such a courier has delivered to the
consignee the consular bag in his charge.
7. A consular bag may be entrusted to the captain of a ship or of a commercial aircraft scheduled to
land at an authorized port of entry. He shall be provided with an official document indicating the
number of packages constituting the bag, but he shall not be considered to be a consular courier. By
arrangement with the appropriate local authorities, the consular post may send one of its members
to take possession of the bag directly and freely from the captain of the ship or of the aircraft.
The convention makes a distinction between carrier consuls Article 40-57 and honorary consuls
(Articles 58-57) with more immunities and privileges being accorded to the former.
Under Article 41 carrier consular officers are not liable to arrest or detention pending trial
except in the case of a grave crime and pursuant to a decision by the competent judicial
authority.
Article 41
Personal inviolability of consular officers
1. Consular officers shall not be liable to arrest or detention pending trial, except in the case of a grave
crime and pursuant to a decision by the competent judicial authority.
2. Except in the case specified in paragraph 1 of this article, consular officers shall not be committed to
prison or be liable to any other form of restriction on their personal freedom save in execution of a
judicial decision of final effect.
3. If criminal proceedings are instituted against a consular officer, he must appear before the
competent authorities. Nevertheless, the proceedings shall be conducted with the respect due to
him by reason of his official position and, except in the case specified in paragraph 1 of this article,
in a manner which will hamper the exercise of consular functions as little as possible. When, in the
circumstances mentioned in paragraph 1 of this article, it has become necessary to detain a consular
officer, the proceedings against him shall be instituted with the minimum of delay.
restriction of their personal freedom except in the execution of a judicial decision of final defect.
If any criminal proceedings are instituted against a consular officer he must appear before the
competent authority and the proceedings must be conducted with respect due to him by reason
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Otherwise the consular officers cannot be committed to prison or be liable to any other form of
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of his official position and in a manner that will not unduly hamper the discharge of his consular
functions.
Where it is necessary to detain the officer the proceedings against him must be instituted with
minimum delay.
Consuls are in principle subject to the jurisdiction of the receiving state except that they are not
amenable to the jurisdiction of the judicial or administrative authorities of the receiving state in
respect of acts performed in the exercise of consular functions.
These exceptions is due less to any personal immunity from jurisdiction possessed by the
consular officers than to the immunity from the jurisdiction of the receiving state which the
sending state has in respect of its act.
However, even where consular officers have jurisdiction immunity they are under duty to
respect the laws and regulations of the receiving state and not to interfere in the internal affairs
of that state (Article 55).
Article 55
Respect for the laws and regulations of the receiving State
1. Without prejudice to their privileges and immunities, it is the duty of all persons enjoying such
privileges and immunities to respect the laws and regulations of the receiving State. They also have
a duty not to interfere in the internal affairs of the State.
2. The consular premises shall not be used in any manner incompatible with the exercise of consular
functions.
3. The provisions of paragraph 2 of this article shall not exclude the possibility of offices of other
institutions or agencies being installed in part of the building in which the consular premises are
situated, provided that the premises assigned to them are separate from those used by the consular
post. In that event, the said offices shall not, for the purposes of the present Convention, be
considered to form part of the consular premises.
Under Article 46 consular officers are exempt from all obligations under the laws and
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Article 46
Exemption from registration of aliens and residence permits
1. Consular officers and consular employees and members of their families forming part of their
households shall be exempt from all obligations under the laws and regulations of the receiving
State in regard to the registration of aliens and residence permits.
2. The provisions of paragraph 1 of this article shall not, however, apply to any consular employee who
is not a permanent employee of the sending State or who carries on any private gainful occupation
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regulations of the receiving state in regard to the registration of aliens and residence permits.
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in the receiving State or to any member of the family of any such employee.
In respect of services rendered in the sending states members of the consular posts and
members of their families forming part of their households are exempt from requirements for
work permits imposed by the laws and regulations of the receiving state concerning
employment of foreign labour (Article 47).
Article 47
Exemption from work permits
1. Members of the consular post shall, with respect to services rendered for the sending State, be
exempt from any obligations in regard to work permits imposed by the laws and regulations of the
receiving State concerning the employment of foreign labour.
2. Members of the private staff of consular officers and of consular employees shall, if they do not
carry on any other gainful occupation in the receiving State, be exempt from the obligations referred
to in paragraph 1 of this article.
They are also exempt from social security provisions in force in the receiving state all dues and
taxes except those specifically provided for all customs, duties and taxes, on articles for the
official use on the consular post as well those for their personal use or that of members of their
households. (Article 48 – 50).
The personal baggage accompanying consular officers and members of their families forming
part of their households are exempt from inspection and customs duties unless there is serious
reason to believe that the baggage contains articles other than those for official or personal use
or articles of import or export of which is prohibited by the laws and regulations of the receiving
state or which are subject to its quarantine laws and regulations.
Article 53 of the convention provides that every member of the consular post enjoys his
immunities and privileges from the moment he enters the receiving state on the way to his post
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Article 53
Beginning and end of consular privileges and immunities
1. Every member of the consular post shall enjoy the privileges and immunities provided in the present
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or if already in its territory on entering upon his duties with the post.
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2.
3.
4.
5.
Convention from the moment he enters the territory of the receiving State on proceeding to take up
his post or, if already in its territory, from the moment when he enters on his duties with the
consular post.
Members of the family of a member of the consular post forming part of his household and
members of his private staff shall receive the privileges and immunities provided in the present
Convention from the date from which he enjoys privileges and immunities in accordance with
paragraph 1 of this article or from the date of their entry into the territory of the receiving State or
from the date of their becoming a member of such family or private staff, whichever is the latest.
When the functions of a member of the consular post have come to an end, his privileges and
immunities and those of a member of his family forming part of his household or a member of his
private staff shall normally cease at the moment when the person concerned leaves the receiving
State or on the expiry of a reasonable period in which to do so, whichever is the sooner, but shall
subsist until that time, even in case of armed conflict. In the case of the persons referred to in
paragraph 2 of this article, their privileges and immunities shall come to an end when they cease to
belong to the household or to be in the service of a member of the consular post provided,
however, that if such persons intend leaving the receiving State within a reasonable period
thereafter, their privileges and immunities shall subsist until the time of their departure.
However, with respect to acts performed by a consular officer or a consular employee in the
exercise of his functions, immunity from jurisdiction shall continue to subsist without limitation of
time.
In the event of the death of a member of the consular post, the members of his family forming part
of his household shall continue to enjoy the privileges and immunities accorded to them until they
leave the receiving State or until the expiry of a reasonable period enabling them to do so,
whichever is the sooner.
Members of his family forming part of his household and of his private staff, commence the
enjoyment of immunities and privileges either when he himself does or on entry into the
receiving state or upon the becoming a member of the family of private staff whichever is the
latter.
The article further provides, that when the functions of the members of the post have come to
an end his immunities and privileges as well as those of the members of his family forming part
of his household and of his private staff cease either upon his leaving the receiving state or after
a reasonable time in which to do so whichever is the sooner.
This is so even in cases of armed conflict. However the immunity enjoyed in respect of act
performed in the exercise of official functions continues without any limitation of time.
The two are established by mutual consent of the states concerned.
Consular relations are at a lower level than diplomatic functions
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Consular functions are economic, social, cultural while diplomatic are political.
A diplomatic envoy is a personal representative of the head of the sending state to the head of the
receiving state and that’s why when there is a change in the head of state the envoy is also changed.
The envoys are personal representatives even when they are career diplomats
A severance/change of diplomatic relations does not mean the severance/change of consular
relations
When there is a change of head of state, the heads will send their personal envoys but in the case of
consular relations no new exequatur is required when the head of the state changes.
Three things to note:
1. Although diplomatic functions differ from and are governed by different rules from consular
functions, the consent given in the establishment of diplomatic relations between two states,
implies, unless otherwise stated, consent to the establishment of consular relations. However,
the severance of diplomatic relations does not ipso facto involve the severance of consular
relations (Article.2). Besides, in contradistinction on diplomatic mission, the consular office does
not come to an end through a change in the headship of the appointing or admitting state. The
reason for that is that diplomatic envoys are appointed by ne head of state to one head of state.
If Kibaki ceases to be head of state of Kenya all diplomatic envoys appointed are recalled and
Kenyatta has to appoint his. For consular officials they do not have to be recalled because they
are not accredited by one head of state to another head of state. Neither a new commission nor
a new exequatur is therefore necessary when a new king comes to the throne or where a
monarchy comes into a republic or in any like case.
2. On their way to take up or return to or return from their post, consular personnel may have to
states to grant to consular officers or members of their families forming part of their
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households, such immunities and privileges provided for in the convention and shall be required
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pass through the territory of another state. Article.54 of the Convention requires such transit
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to facilitate the transit or travel required without hindering the transit of other members of the
consular post or of members of their families forming part of their households.
3. The third is in the light of the 1986 Convention on the Prevention and Punishment of Crimes
Against Internationally Protected Persons including Diplomatic Agents provides further
international protection to heads of state and heads of government, international officials e.g.
UN Secretary General and his deputies and diplomatic agents from crimes against their persons.
This means that apart from the Vienna Conventions, there is this protection under 1986
convention.
IMMUNITIES OF INTERNATIONAL ORGANIZATIONS
Customary International Law does not demand that international organizations and their
personnel be exempt from the jurisdiction of states.
The matter is regulated by specific treaty provisions in particular the treaties creating the
international organizations concerned or by the headquarters agreements concluded by the
host state where the organization is seated. E.g. when you look at the UN HQ at New York or
UNEP in Kenya and its HQ agreement with UN... Accordingly, League of Nations provided in
Article.7 that the representative and officials of the League when engaged in the business of the
League were to enjoy diplomatic immunities and privileges.
UN Charter in Article 105 provides that the Organization shall enjoy the territory of each of its
members, such privileges and immunities as are necessary for the fulfilment of its services.
The representatives of the members of the UN and officials of the UN shall similarly enjoy such
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connection with the Organization.
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immunities and privileges as are necessary for the independent exercise of its functions in
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Acting under Article 105 (3) of the Charter, the UN General Assembly, did, in 1936 adopted the
General Convention on the Privileges and Immunities of the United Nations that provides details
of the privileges and immunities enjoyed by the UN as an international legal person.
Article 105 UN Charter
1. The Organization shall enjoy in the territory of each of its Members such privileges and immunities
as are necessary for the fulfillment of its purposes.
2. Representatives of the Members of the United Nations and officials of the Organization shall
similarly enjoy such privileges and immunities as are necessary for the independent exercise of their
functions in connection with the Organization.
3. The General Assembly may make recommendations with a view to determining the details of the
application of paragraphs 1 and 2 of this Article or may propose conventions to the Members of the
United Nations for this purpose.
The UN General Assembly also adopted the Convention on the Privileges and Immunities of
Specialised Agencies of the United Nations. These are like FAO, WHO, ILO, IMO, UNESCO etc.
Under the Provisions of Section 2(2) of the 1946 General Convention on the Immunities of
Specialised Agencies of the United Nations, the UN enjoys complete immunity from all legal
process.
Under Section 3 and 4, its premises, assets, archives and documents are inviolable. Under s.7
the UN is exempt from direct taxes and customs duties while under s.8 its personnel are exempt
from income tax on their salaries.
Under Section 19, the Sec Gen and the Assistant Secretaries General have diplomatic immunity.
Other staff members only have limited immunities such as immunity from legal process in
respect of their official staff and exemption from military service (Section 18).
Under Section 20, Secretary General must waive staff member’s immunity if in his opinion the
immunity may impede the course of justice and can be waived without injustice to UN.
Representatives of member states attending UN meetings are granted almost the same
privileges like diplomats except that their immunity from legal process applies only to their
official acts and they are immune also to customs duty only with respect to personal baggage.
personnel is a purely functional one related to the specific tasks of the organizations as set out
in their constitutive instrument and serves to secure its ability to perform them.
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Accordingly, the purpose of immunity in the case of international organizations and their
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It is not a reflection of sovereignty except only in the very indirect sense of also serving to
protect interests of member states of the respective organization. Explanation: When states set
up an international organization, they set it up to carry out functions of mutual interests of the
member states. Where it is granted immunity therefore, it indirectly means the ability of
member states to realise and secure their interests.
PRACTICE QUESTION
a) Explain the legal basis for the granting of immunities to agents of states and international
organizations and why such immunities should be extended to members of their families and
households.
b) The Kenya Commissioner of Police telephones the Internal Security Department of the Office
of the President to report that gun shots and shouts for help can be heard from the from the
Indian High Commission in Nairobi. He wishes to be advised whether the Kenya Police force is
entitled to enter the High Commission to investigate the shooting incident.
You are the Permanent Secretary in charge of internal security. Advise the Police
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Commissioner
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LECTURE 13: 19TH APRIL 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 11: STATE RESPONSIBILITY
Introduction
Whenever a duty established by a rule of international law has been breached by an act of
commission or omission a new legal relationship comes into existence.
This relation is established between the subject to which the act is imputable who must make
adequate reparation and the subject who has suffered damage as a result of breach.
The law of state responsibility is concerned with the determination whether there is a wrongful
act for which the wrong doing state is to be held responsible what the legal consequences are
such as an obligation on the part of the wrong doing state to restore the previous situation of to
pay compensation and how such International responsibility may be implemented as for
instance through counter measures adopted by the victim state such as reprisals or restorations.
The principles of state responsibility have been the subject for the extensive consideration by
the International Law Commission which at its 53rd session held in August 2001 adopted the
final text of the Draft Articles Responsibility of States for Internationally Wrongful Act.
i)
The Draft Articles are divided in three parts
Deals with the origins of state responsibility and contains rules relating to the nature of
responsibility, the circumstances in which liability can be imputed to the state and general
defenses.
ii)
Deals with the consequences of a state being fixed with responsibility specifically the rights of an
injured state against the responsible state.
iii)
Deals with implementation of state responsibility and is concerned with such matters as the
resolution of disputes.
Many of the Draft Articles represent rules of customary International law as well as rules
developed through decisions by International Trade Unions.
For instance in The Chorzow Factory (indemnity) (Merits) Germany Poland (1928)
a general conception of law that any breach of an engagement involves an obligation to make
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The permanent court of international justice declares that it is a principle of international law and even
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The Chorzow Factory (indemnity) (Merits) Germany Poland (1928)
PUBLIC INTERNATIONAL LAW-GPR 301
reparation and that reparation is an indispensable complement of a failure to apply a convention and
that there is no necessity for this to be stated in the convention itself.
Similarly in The Corfu Channel Case Merits
The Corfu Channel Case Merits
ICJ placed Albanians liability to Great Britain for failure to notify British Ships about mines in the
Albanian waters of the Corfu channel which exploded and damaged the ships on what the court refers
to as, “Certain General and Well recognized principles” including “every states obligation not to allow
knowingly its territory to be used for acts contrary to the rights of other states. Consequently Albania
was under a duty to pay compensation of the UK.
Facts of the case
On 22nd October 1946 a squadron of British Warships, the cruisers Mauritius and Leander and the
destroyers Saumarez and Volage left the court of Corfu and proceeded Northwards through a channel
previously swept for mines in the North Corfu Strait which formed part of Albanian Territorial waters.
Outside the Bay of Saranda, the Saumarez struck a mine and was heavily damaged while towing the
damages ship the Volage struck a mine and was much damaged. Following the incident, the UK mine
sweepers swept the North Corfu Channel and found 22 mines.
In October, 1944 the North Corfu Channel was swept by the British Navy and no mines were found in
the Channel. In January and February 1945 the channels were checked swept by the British Navy with
negative results. In this swept channel where the minefield was found in Nov 13th 1946.
The mining of the Saumarez and Volage occurred in the Albania Territorial Waters just at the place in the
swept channel where the mine field was found.
By a special agreement referred to as (compromis) the UK and Albania referred their dispute to the ICJ
to determine inter alia whether Albania was responsible under International Law for the explosions
which occurred on 22nd October 1946 in Albanian waters and for the damage and loss of life which
resulted from them and whether there was any duty to pay compensation.
in Albanian waters. It came to the conclusion that the laying of the mine field which caused the
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explosions on the 22nd October 1946 could not have been accomplished without the knowledge of the
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The court held that Albania was responsible under International Law for the explosions which occurred
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Albanian Government. Court relied on circumstantial evidence.
The Albanian Government was thus under an obligation to notify the existence of a minefield in its
territorial waters and to warn the British warships as well as the international community of imminent
danger to which the minefield exposed them.
The Constituent Elements of Responsibility
Circumstances under with a state may be held responsible.
International law makes no distinction between tortious and contractual liability.
The breach of a treaty or customary obligation will give rise to the same remedy usually an
award of damages or a declaration.
However, whether responsibility is based on the principle of strict liability on the part of the
state or on the principle of fault or intention on the part of the state official concerned a state
will be held internationally responsible if the following essential elements are proved.
1. An act of commission or omission that violates an obligation established by a rule of International
law in force between the state responsible for the act and the state injured thereby.
The responsibility of the state does not require an act of malice, negligence or carelessness on
the part of any individual state agent. It may consist of a general defect of failure in the
structure of the state or its public administration and be entirely separated from any subjective
intention.
Fault on the part of the state or any of its organs is all that is required.
2. The unlawful act must be imputable to the state as a legal person.
Imputability has the effect of indicating that the act in question is an act of the state concerned.
The state will only bear responsibility for acts committed by its officials or organs which are
delictual according to international law regardless of whether the officials or organs have acted
within the limits of their competence or have exceeded those limits where they have acted as
If one is a legislator and enacts the legislation one is not exceeding his powers but if the
legislation entails a breach of International responsibility then that will be a breach.
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official character.
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authorized officials of organs or have in so acting used powers or measures appropriate to the
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The general rule regarding state organs and officials is in Article IV of the International law
Commissions Draft Article of the final draft articles which provides that the conduct of any state
organ shall be considered an act of that state under International Law whether the organ
exercises legislative, executive, and judicial or any other functions.
If a judge in Kenya makes a decision that is contrary to International law and has international
implications then Kenya will be liable for consequences as a state.
Under Article 6 the conduct of an organ placed at the disposal of a state by another state shall
be considered an act of the former state if that organ was acting in the exercise of governmental
authority of the former state.
For instance the conduct of the Privy Council cannot be attributed to the UK but to the state at
the disposal of which it has been placed. If an appeal lies from Jamaica to the Privy Council (the
UK), UK is not responsible but Jamaica is held responsible for any misconduct of the Privy
Council.
Article 7 embodies well established customary rules that wrongful acts may be imputed to the
states when its organs or officials act beyond their legal capacity but act to all appearances as
competent officials of organs. It provides that the conducts of an organ of a state or of a person
or entity empowered to exercise elements of the governmental authority shall be considered an
act of the state under International Law if the organ, person or entity acts in that capacity even
if it exceeds its authority or contravenes instructions.
In principle the acts of a person or group of persons not acting on behalf of the state shall not be
considered as acts of the state under International law unless the person or group was
exercising elements of governmental authority in the absence of government officials and under
circumstances which justify them in assuming such authority.
This principle was emphasised in the Home Missionary Society Claim (US v Great Britain) 1920
Vol 6 of RIAA page 42. (Reports of the International Arbitral Awards)
CASE
Home Missionary Society Claim (US v Great Britain) 1920 Vol 6 of RIAA page 42. (Reports of the
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Where the Arbitral Tribunal stated that it was a well-established principle of international law that no
government can be held responsible for the act of rebellious men (and women committed in violation of
its authority where it is itself guilty of no breach of good faith or of no negligence in suppressing
insurrection.
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International Arbitral Awards)
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FACTS: The collection of a new tax imposed by Britain on the indigenous people of Sierra Leone led to
serious and widespread revolts during which missions were attacked and either destroyed or damaged
and some missionaries murdered.
The Home Missionary Society and American Religious Body had its property destroyed and some of its
personnel in Sierra Leone killed. The US alleged that in the face of a crisis the British government failed
to take the proper steps for maintenance of order and that the loss of lives and the destruction of
property were a result of this neglect and failure of duty. The claim failed because inter alia there was
no failure of duty on the part of Great Britain on the facts.
However, in some cases, the act of private individuals may be accompanied by some act or
omission on the part of the state for which the state becomes liable. (This is an exception)Kenya
will not be responsible at the International level for injury suffered by a foreigner but in some
cases the riotous act of the group from Kenya can be as a result of omission on part of Kenya
and it will be liable).
Such acts or omission may take one or more of six forms namely:
1) Encouraging individuals to attack foreigners
2) Failing to take reasonable care to prevent the individuals when an attack is imminent
3) The obvious failure to punish the individuals concerned. Illustrated by Janes’ Claim (USA v Mexico)
1926 4 RIAA 82.
CASE
Janes’ Claim (USA v Mexico) 1926 4 RIAA 82.
Byron Everette Janes a US citizen was murdered in Mexico on July 10th 1918 by a Mexican citizen, one
Pedro Carbajal, a former employee doing business in Mexico and which Janes was the superintendent.
The killing took place in the view of many persons resident in the vicinity of the company’s office. The
local police magistrate was notified of the incident and death within five minutes of the commission of
the crime and arrived at the scene. He delayed in assembling his policemen for half an hour and insisted
that they should be mounted, that they should come on horseback. The company provided the
necessary animals and after the lapse of more than an hour from the time of the shooting the police
started in pursuit of Carbajal who had departed on foot. They failed to apprehend him but Carbajal
and although this info was communicated to the Mexican civil and military authorities they failed to take
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remained at a ranch six miles from the scene of the crime for a week and came to the place twice while
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any steps to apprehend Carbajal. 8 years after the killing was still not apprehended and remained
unpunished for Janes’ murder. The US alleged that in the circumstances the Mexican authorities had
failed to take prompt and adequate measures to apprehend and punish Carbajal and that consequently
Mexico was liable for the killing. The Mexico/ U.S General Claims Commission found for the US, that is,
Mexico was liable and was to compensate the US.
4) Failure to provide the injured foreigner with an opportunity of obtaining compensation from the
wrong doers in the local court i.e. denial of justice e.g The case of Nasiri Ali whose duty-free shops
were taken away from him by Kenya and was deported without compensation. He would have gone
to Kenyan Court.
5) Obtaining some benefit from the individuals wrongful act e.g Loot and Share the proceeds
6) Express ratification of the individuals’ act namely expressly approving it and stating that the person
was acting in the name of the state. For instance in the US diplomatic and consular staff in Tehran
Case the ICJ held that when 17th November 1979 Ayatollah Khomeini issued a decree maintaining
the occupation of the US Embassy and the detention of hostages until the US handed over the shah
for trial. The acts of the private individuals were adopted by the state and thereby arose the
responsibility of Iran in International Law.
The International Law Commission Draft Articles provide for two situations in which a state may
be responsible for unlawful acts committed by private persons.
i)
Under Article 8 the conduct of a person or group of persons shall be considered an act of state
under International Law if the person or group of persons is in fact acting on the instructions or
under the direction or control of that state in carrying out the conduct.
ii) Under Article 11 conduct attributable to individuals shall nevertheless be considered an act of that
state under International law if and to the extent that the state acknowledges and adopt the
conduct in question as his own.
1) Loss or damage must have resulted from the unlawful act
In Interstate relations the concept of damage does not have an essentially material character. It
Material damage is any prejudice caused to the economic or patrimonial interest of a state or its
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nationals whereas moral damage is any breach of a states honor or dignity.
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could also be moral.
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Both the material and moral damage may be taken into account when appraising the modalities
and quantum of the ensuing reparation.
State practice shows that most of the time if a state is not injured at the material or moral level
by the action of another state it does not invoke international rules or state responsibility
against that state.
However, nothing precludes states from setting up by treaty as opposed in customary law a
legal regime whereby a state incurs its responsibility for the breach of an obligation towards
another contracting party even if it has caused no material or moral damage but only a legal
injury.
This legal injury resides in the violation of the right accruing in the other contracting states in
correspondence to the obligation breached.
Justifiable acts causing loss or damages
An important consideration to be taken into account on establishing the responsibility of a state
is whether they are circumstances precluding wrongfulness. State practice and state law as
codified in the International Law Commission Draft Articles, (ILCDA) show that there are certain
circumstances in which an act causing loss or damage may be justifiable in International Law and
consequently not actionable.
1) Consent
Consent to carry out activities that would otherwise be prohibited by IL renders those activities
lawful.
This consent must be given before or at the same time as the violation. Retrospective consent
would constitute a waiver of the right to claim reparation.
However consent is not valid if it is directed to permitting activities contrary to jus cogens such
as consent for the foreign armed forces to enter the territory of another state to massacre
civilians or a specific ethnic group.
Consent will furthermore be vitiated by error, coercion or fraud. According to Article 20 of the
International Law Commission Draft Articles, valid consent by a state to the commission of a
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to the extent that the act remains within limits of that consent.
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given act by another state precludes the wrongfulness of that act in relation to the former state
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2) Defense
International law recognizes that certain acts which would otherwise be unlawful are when
committed in self defense legitimate and do not give rise to responsibility.
The law of self defense finds expression in Article 51 of the UN Charter which provides that
nothing in the charter shall impair the inherent right (by virtue of its sovereignty) of the
individual or collective self defense if an armed attack occurs against a member of the UN until
the Security Council has taken measures necessary to maintain International peace and security.
Self defense can be resulted to on the violation of the right of territorial integrity, the right for
political independence, right to protection over nationals as well as some rights of an economic
nature.
Self defense must limit itself to rejecting the armed attack and must not go beyond this purpose.
State practice is not yet universally accepted but it is pre empting.
Article 51
Nothing in the present Charter shall impair the inherent right of individual or collective self defense if an
armed attack occurs against a Member of the United Nations, until the Security Council has taken the
measures necessary to maintain international peace and security. Measures taken by Members in the
exercise of this right of shall be immediately reported to the Security Council and shall not in any way
affect the authority and responsibility of the Security Council under the present Charter to take at any
time such action as it deems necessary in order to maintain or restore international peace and security.
Consequently
i)
The victim of the violation must not occupy the violator state territory unless this is quickly required
by the need to hold the aggressor in check and prevent the continuation of aggression by other
means.
ii) Self defense must come to an end as soon as the security council comes in and takes over the task of
putting to an end of the violation
iii) Self defense must cease as soon as its purpose i.e. to repel the armed attack has been achieved
Military action over stepping mere rejection of the aggression is neither authorized nor
Self defense is normally a reaction to attack by another state. What about the case of al Shabab
on their attack in Kenya? Al Shabab is not supported by state of Somalia yet we attack Somalia
territory.
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condoned by Article 51 of the charter and general International law.
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Article 21 of the ILCDA simply provides that the wrongfulness of the act of a state is precluded if
the act constitutes a lawful measure of self defense taken in conformity with Charter of the UN.
In the event of a breach of International law, the injured state as an individual state is legally
entitled to disregard an international obligation owed to the delinquent state by taking counter
measures.
The UN Charter is silent on what amounts to armed attack and where it comes up and that is why the
Charter gives states that wide and liberal provision. Remember what happened in the US in September
26th 2001 when they attacked Afghanistan, also when Kenya went to Somalia. So now in these instances,
where was the armed attack to justify the attacks on Somalia. Self defence can be resorted to on the
violation of the right to territorial integrity, right to political independence, the right of protection over
nationals and some rights of an economic nature. When Israel with Kenya’s complicity raided Entebbe in
1976 to rescue nationals in imminent danger after French Airline had.........Iddi Amin had just guarded
the aircraft. There are also instances where states raid others to protect economic interests of their
nationals. Self defence must limit itself to repulsing armed attack and must not go beyond that purpose.
In self defence, remember, there is no hot pursuit. That is why Prof. insists that we did not go to Somalia
in self-defence. We went there to hunt Al-Shabaab. Consequently: a. The victim of the violation must
not occupy the violator’s state territory unless this is strictly required by the need to o hold the
aggressor in check and prevent the continuation of violation. b. Self defence must come to an end as
soon as the Security Council steps in and takes care of the task of putting to an end the violation and
restoring international peace and security. c. Self defence must cease as soon as its purpose namely the
repulsion of the armed attack has been achieved. Military action overstepping mere repulsion of the
aggressor is neither authorised nor condoned by A.51 and general International Law.
3) A Counter Measure
A counter measure is an illegal act that is rendered lawful as a response to a prior illegal act.
Counter measures must fulfill some basic conditions and in addition subject to a number of
limitations.
The injured state is not allowed to result to taking counter measures as soon as a wrong occurs.
It must first call upon the responsible state to discontinue wrongful action or to make
reparation.
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i)
The conditions are that
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ii)
If the secession of the wrong is not obtained or no reparation is made i.e. there is an unsatisfied
demand, the injured state must endeavor to obtain through negotiations pursuant to the
general obligation under the UN Charter for peaceful settlement of the dispute. Only when the
author of the wrong doing refuses to engage in negotiations or willfully or malafide hampers the
working of other means of settlement can the injured state consider in good faith that no other
choice is available except counter measures. See Article 33 of the UN Charter.
CHAPTER VI
PACIFIC SETTLEMENT OF DISPUTES
Article 33
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by
such means.
The taking of counter measures is subject to a no. of limitations
1) Counter measures may not involve the threat or use of force contrary to the UN Charter
2) Counter measures may not disregard International rules for the protection of human rights or the
dignity and welfare of human beings in general.
3) Counter measures may not disregard implications imposed by jus cogens
4) Countermeasures may only target the state responsible for an international wrongful act and must
not breach the rights of 3rd states.
5) Counter measures must not be out of proportion with the breach by the delinquent state. In other
words the counter measures must be balanced against the injury cause by the wrong doing state.
Article 22 of the ILDCA provides that the wrongfulness of the acts of a state not in conformity to
an international obligation towards another state is precluded if and to the extent that the act
constitutes a counter measure against the latter state.
Article 49-54 provides for the conditions of and limitations to which counter measures are
subject.
4) Sanctions
Closely related to but different from counter measures is the application of a sanction
authorized by an international or regional organization pursuant to its statutory mandate.
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Whereas counter measures are taken by individual states sanctions are collective responses
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taken within an institutional framework. The imposition of sanctions will not give rise to
responsibility to the resultant loss or damage.
Accordingly, preventive or enforcement action as other measures applied by UN organs or by
regional institutions in conformity with the UN Charter does not create any responsibility for the
ensuring damage or loss.
5) Force Majeure
Force majeure will preclude the wrongfulness of an act or omission by one state in violation of
its obligation owed to another.
Article 23(1) ILCDA defines force majeure as the occurrence of an irresistible force or of an
unforeseen event beyond the control of the state making it materially impossible in the
circumstances to perform the obligation. Under Para 2 force majeure does not apply if
a) The occurrence of force majeure either alone or in combination with other factors from the conduct
of the state in invoking it
b) If the state has assumed the risk of that occurrence
In state practice force majeure is generally invoked to satisfy involuntary or at least an intentional
conduct and relates to the irresistible force or an unforeseen event against which the state has no
remedy and which makes it “materially impossible” for the state to act in conformity with its
obligations. See The Rainbow Warrior Case
CASE
The Rainbow Warrior Case
The Arbitral Tribunal held that force majeure is generally invoked to justify involuntary or at least unintentional conduct and relates to an ‘irresistible force or an unforeseen event’ against which the state
has no remedy and which makes it ‘materially impossible’ for the state to act in conformity with its
obligations.The tribunal went on to note that the test for applying the doctrine of force majeure was
one of ‘absolute and material impossibility’ whereas a ‘circumstance rendering performance of the
obligation more difficult or burdensome’ did not constitute such a circumstance precluding
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wrongfulness.
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6) Situation of Distress
Under Article 24 of the ICDL the wrongfulness of an act of a state not in conformity with the
international obligation of that state is precluded if the author of the act in question has no
other reasonable way in a situation of distress of saving the authors life or the other lives
entrusted to the authors care.
The article provides that distress does not apply if
a) The situation of distress results either alone or in combination with other factors from the conduct
of the state invoking it or
b) The act in question was likely to create comparable or greater peril.
7) Necessity
It is often asserted that if a state coerced by necessity to save itself from great and
imminent danger which it has not itself induced and which it cannot in any other way
escape takes action violating the rights of another state such action does not engage its
international responsibility.
The danger it is to avoid must be of such a nature as to put on jeopardy the existence of the
state, its territorial or personal statute, its government or form of government or to limit or
even make disappear its independence or International capacity.
Necessity is defined in article 25 (1) of the ILCDA as the condition where an other wise
unlawful act is performed and such act
a) Is the only means for the state to safeguard an essential interest against a grave and imminent peril
b) Does not seriously impair an essential interest of the state or states towards which the obligation
exists or of the international community as a whole.
Under Para 2 necessity may not be invoked by a state as a ground for precluding wrongfulness if
a) The international obligation in question excludes the possibility of invoking necessity or
b) The state has contributed the situation of necessity. See the Neptune Case which is illustrative of
this point.
CASE
an American owned vessel, the Neptune loaded with rice and other food stuff under voyage from US to
France, was captured by a British warship and the cargo was taken over for the British government the
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Decided in 1797 by a US-Britain Mixed Commission is illustrative. In 1795, during the Anglo-French War
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NEPTUNE CASE
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owners being allowed the invoice price and a mercantile profit of 10%. The owners claimed before the
US-Britain Mixed Commission the difference between what had thus been paid to them and the price
the goods would have fetched at Bordeaux had they not been seized. Britain claimed inter alia that the
seizure was justifies by necessity because Britain ‘was threatened with scarcity of those items directed
to be seized.’ Judge Pinkney, writing as a member of the majority that issued the award, relied for the
issue of necessity upon the opinion of jurists such as Hugo Grotius and admitted that in case of “scarcity
which produces severe national distress or national despondency unless extraordinary measures are
taken to prevent it” a state could be “authorised to have recourse to the forcible seizure of provisions
belonging to neutrals for averting the calamity it feared.“ However, in the instant case, the judge
dismissed the British argument essentially on two grounds:
a. The evil was only “seen in perspective” in that it was “imaginary” and not “real and
pressing.”
b.
No attempt had been made to find other means of supply which were “consistent with the
rights of others” and which were not “incompatible with the exigency”.
See also The 1967 TORREY CANYON CASE
CASE
The 1967 TORREY CANYON CASE
A Liberian registered oil tanker carrying approximately 120 000 tonnes of crude oil ran aground on the
high seas off the British coast. The resultant oil spill created an imminent threat of massive oil pollution
on the neighbouring British and French coast. Although the ship was registered in Liberia, this in Law of
the Sea was a flag of convenience. The ship had no relation to Liberia. To avoid any damage to British
and French coast and the marine environment and since salvage operations were hindered by rough
seas the UK air-force firebombed the vessel so as to open the cargo tanks and burn the oil therein. The
distress the wrongful act is justified by the urgent necessity to save the life a person performing
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the act or of others entrusted to the state, necessity aims at warranting a breach of
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British authorities invoked necessity to justify their action. The flag state, Liberia, did not protest.
Note: The distinction between Situation of Distress and Necessity is that while in the case of
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international law imposed by the need to avert a serious danger for the whole state or the
population or part of the population of the state.
STATE RESPONSIBILTY AND ITS ORGANS
In International law, a state is responsible for the actions of the government, i.e. its legislature,
executive or judiciary, any political subdivision of the state such as a federal unit and any organ,
agency, official employee or other agent of its government or of any subdivision acting within
the scope of their employment.
International responsibility is incurred by a state as a result of either the enactment of
legislation incompatible with its international obligations or of the non-enactment of legislation
necessary for implementing those obligations.
The claimant must however establish that damage ensued as a result of the implementation of
the legislation or the failure to legislate. If the Kenyan National Assembly enacts a law contrary
to International Law rules, it will be liable.
A state incurs responsibility for any act contrary to International law committed by any of the
executive or administrative agents or officers of the state and in particular the head of state, the
head of government, a minister, a diplomatic or consular officer or some other state official.
Although independent of the other government organs, the judiciary is not independent of the
state and is as much a part of the state as are the legislature and the executive when it comes to
International law The state is as much responsible for acts of judicial organs contrary to
International law as it is the acts of the legislature and the executive.
Judicial decisions which are clearly incompatible with the international law obligations of the
state will give rise to international responsibility.
However, responsibility is not incurred due to a mistaken application or violation of a rule of
domestic law even if such misapplication or violation results in injury to an alien.
For state responsibility to arise it is necessary that there be a manifest violation of International
law if there is no violation of International law an error of fact or of domestic law on the part of
the judiciary is not enough to engage the state’s responsibility. Here there will be room for
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appeal and not state to be responsible.
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In the Case of dependent territories or members states of a federation the protecting power or
the federal state is responsible for the acts of the subordinate unit to the extent to which the
latter’s international personality has ceased to exist. This is because since the protected
territory is unable to act without an intermediary on the international level the responsibility of
the protecting state is based on the fact that it is that state alone which represents the
protected territory in international affairs.
Similarly, a state is responsible for the acts of self governing units if the acts are committed by
those units by exercise of their republic functions. For instance, county governments are not
international persons so they cannot sign agreements with other states on behalf of Kenya.
Were these otherwise, states could evade some of their international obligations by shielding
behind divisions created under their public laws.
NATURE AND EXTENT OF REPARATION
A state discharges the responsibility incumbent upon it for breach of an international obligation
by making good i.e. by giving reparations for injury caused or damage caused.
Article.34 of International Commission Draft Articles enunciates the principle that a delinquent
state must make full reparation for injury or damage caused by commission of an internationally
wrongful act.
Reparation may take the form of restitution, compensation (indemnity), or satisfaction either
singly or in combination.
The choice of a particular form of reparation varies depending on content of obligation
breached and nature of injury or damage sustained.
The basic rules on this subject of reparation were enunciated by the Permanent Court of
International Justice in the Chorzow Factory Case (Indemnity) (Merit) (1928) PCIJ Rep. Series A,
No.17.
CASE
Chorzow Factory Case (Indemnity) (Merit) (1928) PCIJ Rep. Series A, No.17.
the court stated’” It is a principle of International Law that the breach of an engagement involves an
obligation to make reparation in an adequate form. The essential principle contained in the actual
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Chorzow by Poland contrary to 1922 of the Convention between Germany and Poland on upper Silesia,
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This case was involving a claim of Germany against Poland arising out of the expropriation of a factory at
PUBLIC INTERNATIONAL LAW-GPR 301
notion of an illegal act...is that reparation must, as far as possible wipe out all the consequences of the
illegal act and re-establish the situation which would, in all probability, have existed if that act had not
been committed. Restitution in kind, or, if this is not possible, payment of a sum corresponding to a
value which restitution would bear; the award if need be, of damages for loss sustained which would not
be covered by restitution in kind or payment in place of it –such are the principles which should serve to
determine the amount of compensation due for an act contrary to International law”.
Under Article.39 of the ILCDA in the administration of reparations account must be taken of the
contribution to the injury by willful or negligent act or omission of the injured state or any
person or entity in relation to which reparation is sought.
Reparation can take any of the following Three forms in International law
a) Restitution
b) Compensation (Indemnity)
c) Satisfaction
1. RESTITUTION:
Restitution may take the form of legal restitution or restitution in kind or restitution in
integrum.
Legal restitution consists of a declaration that an offending act of the executive, judiciary or
legislature is invalid.
Legal restitution can be considered as restitution in integrum or as a kind of satisfaction
although it is rare in practice.
Restitution in kind is the primary remedy at international law.
It is designed to re-establish the situation which would have existed if the wrongful act or
omission had not taken place by performance of the obligation which the state concerned failed
to discharge, revocation of the wrongful act or abstention from further wrongful conduct.
Restitution in kind has been decreed by international arbitral tribunals in cases where there was
For instance, In the Norwegian Shipowners Claim the arbitral tribunal stated that just
compensation implied a full/ complete restitution of the status quo ante based on the loss of
profits incurred by the Norwegians as compared with other owners of similar property.
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an agreement between the two parties either for the purposes of a particular case or generally.
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CASE
Norwegian Ship-owners Claim (Norway v. United States) (1921) 1 R.I.A.A. 307.
By an act of congress approved on June 15th 1917, all ships over 2 500 tons, material contracts, plans
and specifications in the US shipyards were requisitioned. Due compensation was to be made by the
U.S. Contracts for the construction of 15 ships were made subject of the claims by their Norwegians
against the US Shipping Board. Norway and the US agreed to submit the claims to an arbitral tribunal
authorised by the compromis to decide in accordance with the principles of law and equity. At the date
of the requisition, only two keels had been laid and material for a third delivered. The U.S took these
over and the shipyards were prohibited from doing any work except for the U.S government. The
tribunal recognised the right of the U.S to requisition neutral property but recognised that the
requisition affected the contract as well as the physical property. It held that the U.S was under the duty
to make just compensation to the claimants.
Fifteen Norwegian ship owners placed contracts for the building of ships in U.S. shipyards. After the
United States declared war on Germany on 6 April 1917, the United States requisitioned the Norwegian
shipowners’ property. Negotiations between the United States and Norway failed to lead to a
settlement of the claims for compensation presented by Norway on behalf of the shipowners, and by an
Agreement signed on 13 June 1921 (14 L.N.T.S. 20) they referred the dispute to a tribunal of the
Permanent Court of Arbitration for decision in accordance with the principles of law and
equity. Held that the United States must pay compensation to Norway.
The claimants were deprived of their property by a requisition in exercise of the power of eminent
domain (the power of the State to take property within its jurisdiction which may be required for the
public good); while the tribunal could not disregard the municipal law of the parties (unless it was
contrary to the equality of the parties or to principles of justice common to all civilized nations) which
had been accepted by foreign nationals in their private dealings, the tribunal was not governed by that
law, but could examine it for consistency with the equality of the parties, treaties binding the party in
question, well-established principles of international law, including customary law, and the practice of
paid without undue delay the United States was entitled to take the claimants’ property for the duration
of the special war emergency; just compensation implied a complete restitution of the status quo
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due to the claimants based upon respect for private property, and providing such compensation was
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judges of international courts; under U.S. law, as well as under international law, just compensation was
PUBLIC INTERNATIONAL LAW-GPR 301
ante based upon loss of profits of the Norwegian owners as compared with other owners of similar
property and compensation was accordingly awarded on the basis of the fair market value of the
claimants’ property.
Article.35 of the International Law Commission Draft Articles provides that a state responsible
for an internationally wrongful act is under an obligation to make restitution that is to reestablish the situation which existed before the wrongful act was committed provided and to
the extent that restitution:
a. is not materially responsible
b. it does not involve a burden out of all proportion to the benefit deriving restitution
instead of compensation
See also: The Temple Of Preah Vihear (Cambodia V Thailand) 1962 ICJ Rep.6
CASE
The Temple Of Preah Vihear (Cambodia V Thailand) 1962 ICJ Rep.6
The case involves a boundary between the two countries. Thailand because of the dispute between the
two, decided to carry out religious objects from the temple, which was on the boundary. After
determination, ICJ told Thailand to return the objects to Cambodia since the temple was found to be on
Cambodia’s side.
See also the Chorzow Factory Case as discussed above.
2. COMPENSATION OR INDEMNITY
The PCIJ stated in the Chorzow Factory Case that it is a principle of international law that the
reparation of a wrong may consist of an indemnity (compensation).
This is the most frequent form of reparation. This compensation is measured by pecuniary
The fact that indemnity presupposes the payment of a sum corresponding to the value which
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standards (monetary standards).
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As a consequence of the depreciation of currencies and of delays involved in the administration
of justice, the value of a property compensated may be higher at the time of the decision of the
tribunal than at the time of the wrongful act.
Example in the Norwegian Ship-owners Claim: The US requisitioned ships in 1917; obviously,
the owners are not compensated on the same date. ICJ will take into account the depreciation
of the currencies and the appreciation of the properties in order to determine compensation,
say 20 years down the line.
Since monetary compensation must as far as possible resemble restitution the value of the
property at the date when the compensation is paid is the criterion.
Further, under this principle, the injured party may in appropriate cases claim for lost profits on
the basis that just compensation implies a complete restitution of the status quo ante.
Interest as well as loss of use of that sum during the period within which the payment continues
to be withheld is payable.
Article.36 of the International Law Commission Draft Articles provides that compensation must
cover any financially assessable damages and if applicable, any loss of profit.
Article.38 provides important clarifications in respect of interest:
a. States that any interest on any principal sum shall be payable when necessary in order to ensure
full reparation. The interest rate and mode of calculation shall be set in order to achieve that
result.
b. The Articles specifies that interest runs from the date when the principal sum should have been
paid until the date when the obligation to be paid is fulfilled, i.e. until payment in full.
International law does not accept the concept of punitive, vindictive or exemplary damages.
3. SATISFACTION
Satisfaction as a form of reparation is appropriate for non-material damage or moral injury to
the personality of the state.
Satisfaction differs from restitution in kind in that it cannot lead to actual restitution of the
status quo ante.
would not entail any actual damage or where monetary compensation is either inappropriate or
insufficient.
This is illustrated by the I Am Alone Case (Canada v US) 1935 3 RIAA 1609.
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Its typical purpose is to repair breaches of international obligations in cases where such a breach
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CASE
I Am Alone Case (Canada v US) 1935 3 RIAA 1609.
This was a claim referred to the Commission established under the Pecuniary Claims Agreement
between Great Britain and the United States of 18 August 1910 pursuant to Article. 4 of the AngloAmerican Liquor Treaty of 23 January 1924: 27 L.N.T.S. 182.
It arose out of the sinking of the I’m Alone, a British vessel of Canadian registry, summoned to stop while
engaged in smuggling liquor into the United States at a point outside U.S. territorial waters but
apparently within the one-hour steaming zone designated by Article 2 of the 1924 Convention as one
within which Great Britain would raise no objection to examination of vessels on suspicion of violation
of the U.S. liquor laws.
Having refused to stop, the vessel was eventually sunk upon the high seas by a sister vessel of the
coastguard cutter which originally hailed her. On 7 January 1935, the Commission held that the sinking
was not justified either by the terms of the Convention or by general international law.
Even assuming that the United States was entitled to exercise the right of hot pursuit (upon which
question the Commissioners did not, apparently, declare themselves;), the intentional sinking of the
vessel went beyond the exercise of necessary and reasonable force for the purpose of her
apprehension.
In consequence, the Commission recommended that the United States should formally acknowledge
the illegality of the sinking and pay the Government of Canada $25,000 ‘as a material amend in
respect of the wrong’; further, that the United States should pay certain sums for the benefit of the
captain and crew, who were not implicated in the conspiracy to smuggle liquor into the United States;
but that no compensation ought to be paid in respect of the loss of the ship or cargo because,
although a British ship, she was de facto owned, controlled, and at the critical time managed and her
movements directed and her cargo dealt with and disposed of ‘by a group of persons acting in concert
who were entirely, or nearly so, citizens of the United States’.
In contemporary law and practice satisfaction is limited to presentation of official regrets and
public apologies or other acknowledgment of wrongdoing and an undertaking to punish
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wrong.
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individuals responsible for the act and the taking of measures to prevent recurrence of the
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Article. 37 of the International Law Commission Draft articles provides that satisfaction may be
given as a remedy for an internationally wrongful act which can’t be made good by restitution or
compensation.
Satisfaction may consist of an acknowledgment of the breach, an expression of regret, a formal
apology or another appropriate modality.
The Article provides further that satisfaction should not be out of proportion to the injury and
should not take a form that is humiliating to the delinquent state.
TREATMENT OF ALIENS OR FOREIGNERS
SO FAR, what we have been dealing with under STATE RESPONSIBILITY is direct international
wrongs: those which the state as a legal person is involved. The second bit is state responsibility
in another sense, especially looking at aliens and how we treat them as a country.
A distinct and separate aspect of a states international responsibility relates to the treatment of
foreign nationals by the host state.
This is a controversial subject that is highlighted on the lack of consensus in the standard of
treatment of foreign nationals.
The economically developed state of Northern America and Western Europe have insisted that
there is an international minimum standard for treatment that must be accorded to foreign
nationals by all states irrespective of how they treat their own nationals.
The newer and developing states insist on the other hand that foreign nationals may only insist
upon national treatment” i.e. treatment equal to that given by the state concerned to its own
nationals.
Main justification for granting foreign nationals equality of treatment under the local law is
founded on territorial sovereignty in that to give the foreign national a special status would be
contrary to the principles of territorial jurisdiction and equality of states and by residing in the
particular state the foreign national is deemed to have submitted to both benefits and burdens
incidental to residents in that state.
reflect conflicting economic and political interests.
However, whether it is the national standard of treatment or the international minimum
standard that applies state practice and judicial decisions show that in order to constitute an
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The national standard of treatment and the international minimum standard of treatment
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international delinquency there by involving the responsibility of the state, the treatment of a
foreign national must amount to an outrage to bad faith to willful neglect of duty or to an
insufficiency of governmental action so far short of international standards that every
reasonable and impartial man or woman would greatly recognize its insufficiency.
This is shown by the case of Neer Claim (USA v Mexico) 1926 4 RIAA 60
CASE
Neer Claim (USA v Mexico) 1926 4 RIAA 60
In which the USA claimed unsuccessfully before the US/MEXICO Claims Commission that makes Mexico
had failed to exercise due diligence in finding and prosecuting a murderer of a US national.
Facts
In 1924, Paul Neer, an American citizen, was killed in Mexico by a group of armed men. This claim was
presented to the U.S-Mexico General Claims Commission alleging that the Mexican authorities had
shown culpable lack of diligence in prosecuting the culprits.
Held
The claim must be disallowed, since there was no evidence of such lack of diligence as to constitute an
international delinquency: the propriety of governmental acts was decided according to international
minimum standards, and the treatment of an alien, ‘in order to constitute an international delinquency,
should amount to an outrage, to bad faith, to willful neglect of duty, or to an insufficiency of
governmental action so far short of international standards that every reasonable and impartial man
would readily recognize its insufficiency’, it being immaterial whether ‘the insufficiency proceeds from
deficient execution of an intelligent law or from the fact the laws of the country do not empower the
authorities to measure up to international standards.
Excerpts
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As to lack of diligence, or lack of intelligent investigation, on the part of the Mexican authorities, after
the killing of Paul Neer had been brought to their notice, it would seem that in the early morning after
the tragedy these authorities might have acted in a more vigorous and effective way than they did… The
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This claim is presented by the United States against the United Mexican States in behalf of L. Fay H.
Neer, widow, and Pauline E. Neer, daughter, of Paul Neer, who, at the time of his death, was employed
as superintendent of a mine in the vicinity of Guanacevi, State of Durango, Mexico. On November 16,
1924, about eight o'clock in the evening, when he and his wife were proceeding on horseback from the
village of Guanacevi to their home in the neighborhood, they were stopped by a number of armed men
who engaged Neer in a conversation, which Mrs. Neer did not understand, in the midst of which bullets
seem to have been exchanged and Neer was killed. It is alleged that, on account of this killing, his wife
and daughter, American citizens, sustained damages in the sum of $100,000.00; that the Mexican
authorities showed an unwarrantable lack of diligence or an unwarrantable lack of intelligent
investigation in prosecuting the culprits; and that therefore the Mexican Government ought to pay to
the claimants the said amount.
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Commission is mindful that the task of the local Mexican authorities was hampered by the fact that the
only eyewitness of the murder was unable to furnish them any helpful information. There might have
been reason for the higher authorities of the State to intervene in the matter, as they apparently did.
But in the view of the Commission there is a long way between holding that a more active and more
efficient course of procedure might have been pursued, on the one hand, and holding that this record
presents such lack of diligence and of intelligent investigation as constitutes an international
delinquency, on the other hand.
The Commission recognizes the difficulty of devising a general formula for determining the boundary
between an international delinquency of this type and an unsatisfactory use of power included in
national sovereignty.
In 1910 John Bassett Moore observed that he did "not consider it to be practicable to lay down in
advance precise and unyielding formulas by which the question of a denial of justice may in every
instance be determined" (American Journal of International Law, 1910, p. 787), and in 1923 De
Lapradelle and Politis stated that the evasive and complex character (le caractère fuyant et complexe) of
a denial of justice seems to defy any definition (Recueil des Aibitrages Internationaux, II, 1923, p. 280).
It is immaterial whether the expression "denial of justice" be taken in that broad sense in which it
applies to acts of executive and legislative authorities as well as to acts of the courts, or whether it be
used in a narrow sense which confines it to acts of judicial authorities only; for in the latter case a
reasoning, identical to that which—under the name of "denial of justice"—applies to acts of the
judiciary, will apply—be it under a different name—to unwarranted acts of executive and legislative
authorities. Without attempting to announce a precise formula, it is in the opinion of the Commission
possible to go a little further than the authors quoted, and to hold (first) that the propriecy of
governmental acts should be put to the test of international standards, and (second) that the
treatment of an alien, in order to constitute an international delinquency, should amount to an
outrage, to bad faith, to wilful neglect of duty, or to an insufficiency of governmental action so far
short of international standards that every reasonable and impartial man would readily recognize its
insufficiency. Whether the insufficiency proceeds from deficient execution of an intelligent law or
from the fact that the laws of the country do not empower the authorities to measure up to
international standards is immaterial. (emphasis
supplied)
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No attempt is made to establish the second point. The first point is negatived by the full record of police
and judicial authorities produced by the Mexican Agent, though the Commission feels bound to state
once more that in its opinion better methods might have been used. From this record it appears that the
local authorities, on the very night of the tragedy, November 16, went to the spot where the killing took
place and examined the corpse; that on November 17 the Judge proceeded to the examination of some
witnesses, among them Mrs. Neer; that investigations were continued for several days; that arrests
were made of persons suspected; and that they were subsequently released for want of evidence. The
American Agency in rebuttal offers nothing but affidavits stating individual impressions or suppositions.
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It is not for an international tribunal such as this Commission to decide, whether another course of
procedure taken by the local authorities at Guanacevi might have been more effective. On the contrary,
the grounds of liability limit its inquiry to whether there is convincing evidence either
1. that the authorities administering the Mexican law acted in an outrageous way, in bad faith, in wilful
neglect of their duties, or in a pronounced degree of improper action, or
2. that Mexican law rendered it impossible for them properly to fulfil their task.
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In the light of the entire record in this case the Commission is not prepared to hold that the Mexican
authorities have shown such lack of diligence or such lack of intelligent investigation in apprehending
and punishing the culprits as would render Mexico liable before this Commission. The Commission
accordingly decides that the claim of the United States is disallowed.
As a general rule every state is under an international obligation not to ill treat foreign nationals
present in its territory. If the state violates this obligation in any way it may incur international
responsibility in the state of which the foreigner is a national.
Ill treatment of foreign nationals giving rise to international responsibility may result for
instance from unlawful expropriation of foreign owned property, failure to punish individuals
responsible for attack on foreign nationals or denial of justice such as a refusal to afford a
foreign national a right to be heard or arbitrariness or unfairness in judicial proceedings in which
the foreign national is a resident.
Under international law every state has the right of diplomatic protection of its nationals injured
at the hands of another state. Injury to a citizen is injury to the state of which he is a national.
NB: Diplomatic protection of nationals is not the same as diplomatic immunities and
privileges.
The state has a legal interest in its citizens and in protecting this interest the state may call to
account those harming its citizens.
This means that when a national suffers an injury at the hands of another state his state of
nationality may take up the claims as its own.
ILLUSTRATION
If you are in Uganda and Besigye takes your property and you go through all processes in Uganda up to
the Supreme Court, you can come to Kenya and tell Amina Mohamed that that is what happened....
There are 3 principles that govern claims by state for violation of the rights of their nationals by
other states
1) Requirement of the espousal of private claims by a state.
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Here, Kenya will not go back to Uganda on your behalf, it will go to an international tribunal.
PUBLIC INTERNATIONAL LAW-GPR 301
Under this principle a state is entitled to espouse the claims of its national against another state
from which the national has been unable to obtain satisfaction through the ordinary channels.
By taking up the case of its national and by resorting to diplomatic channels or presenting a
claim to the international plane the state is in reality asserting its own right to ensure in the
person of its national respect for the rules of international law.
ILLUSTRATION
Here initially when X is claiming against UG government he was doing that as a private individual. And
he comes to ambassador Amina, when Kenya takes over X’s claim, it is a private one but it is being
pursued by a state and at the moment the state does so, it ceases to be a private claim and becomes a
state v state claim.
This principle was stated by the PCIJ in the Mavrmatis Palestine Concession Case (Jurisdiction):
Greece v UK (1924) PCIJ Rep. Ser. A NO.2 AT P. 12.
CASE
Mavromattes Palestine Concessions Case
The Court summarized that ” ...it is an elementary principle of international law that a state is entitled
to protect its subjects, when injured by acts contrary to international law committed by another state
from whom they have been unable to obtain satisfaction through the ordinary channels. By taking up
the case of one of its subjects and by resorting to diplomatic action or international judicial
proceeding on his behalf a state is in reality is asserting its own right to ensure, in the person of its
subject, respect for the rules of international law.”
FACTS
Mavrommatis, a Greek national, was in 1914 granted concessions by the Ottoman authorities for
certain public works in what later became the British mandated territory of Palestine. Greece alleged
that Great Britain, through the Palestine Government, had refused fully to recognize the concessions
in Jerusalem and Jaffa, principally by having granted to a Mr. Rutenberg concessions partially
application of the provisions of the mandate between Great Britain and another member of the
League of Nations which could not be settled by negotiation. On a preliminary objection by Great
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mandate, conferring jurisdiction on the P.C.I.J., applied to disputes relating to the interpretation or
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overlapping those enjoyed by Mavrommatis, and accordingly sought compensation. Art. 26 of the
PUBLIC INTERNATIONAL LAW-GPR 301
Britain to jurisdiction, on 30 August 1924, the Court held (7 to 5) that it had jurisdiction in respect of
the Jerusalem concessions, but not the Jaffa concessions. The dispute was between Great Britain and
another member of the League of Nations. ‘It is an elementary principle of international law that a
State is entitled to protect its subjects, when injured by acts contrary to international law committed
by another State, from whom they have been unable to obtain satisfaction through the ordinary
channels. By taking up the case of one of its subjects and by resorting to diplomatic action or
international judicial proceedings on his behalf, a State is in reality asserting its own rights—its right
to ensure, in the person of its subjects, respect for the rules of international law. The question,
therefore, whether the present dispute originates in an injury to a private interest, which in point of
fact is the case in many international disputes, is irrelevant from this standpoint. Once a State has
taken up a case on behalf of one of its subjects before an international tribunal, in the eyes of the
latter the State is sole claimant’: P.C.I.J., Ser. A, No. 2 at 12. The dispute could not in the
circumstances of the case be settled by negotiation; and (so far as concerned the Jerusalem
concession, but not the Jaffa concession) related to a relevant provision of the mandate. Although
Protocol XII of the Treaty of Lausanne of 24 July 1923 (28 L.N.T.S. 11;), which formed the Peace
Treaty with Turkey, contained provisions expressly relating to the recognition of concessions in
Palestine but without recognizing the Court's jurisdiction in cases of dispute, it complemented the
mandate and did not render inoperative its jurisdictional clauses.
In its judgment on the merits on 26 March 1925, the Court held (unanimously) that, the Jerusalem
concession being valid, Protocol XII required the maintenance of concessions such as those granted
to Mavrommatis, and accordingly a grant to Rutenberg of a concession allowing him for a time to
request the annulment of Mavrommatis’ concession was contrary to Great Britain's obligations under
the Protocol; but (11 to 1) that Greece's claim for an indemnity must be dismissed since the
Mavrommatis concession was not in fact annulled nor was there any proof of other loss he may have
suffered; and (unanimously) that, under the Protocol, Mavrommatis was entitled to have his
concessions adapted so as to be brought into conformity with the new economic conditions in
Palestine. Greece subsequently claimed that Great Britain had so delayed the negotiations for the
adaptation of the concessions as to amount to a breach of its international obligations under the
held on 10 October 1927 (7 to 4) that the alleged breach by Great Britain of its international
obligations did not in the circumstances come within the jurisdiction conferred on the Court by the
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adequate reparation. On a preliminary objection by Great Britain to the Court's jurisdiction, the Court
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Mandate and had thereby caused injury to Mavrommatis for which Great Britain should make
PUBLIC INTERNATIONAL LAW-GPR 301
terms of the mandate.
2) The state espousing the claim must be the state of nationality of the foreign national
Oppenheim states this principle as follows “...from the time of the occurrence of the injury
until the making of the award the claim must be continuously and without interruption have
belonged to a person or to a series of persons :A. Having the nationality of the state by whom
it is put forwards and B. Not having nationality of the state against whom it is put forward.”
Nationality is a vital concept in this area of responsibility.
The right of a state to espouse private claims is limited to intervention on behalf of its own
nationals because in the absence of a special agreement it is the bond of nationality between
the state and the individual which alone confers upon the state the right to exercise diplomatic
protection.
It is as a part of the function of diplomatic protection that the right to take up a claim and
ensure respect for the rules of international law is exercised by the state. Where the injury has
been done to the national of some other state, no claim to which such injury may give rise falls
within the scope of diplomatic relations which the state is entitled to espouse. If you are not a
Kenyan and you suffer harm under Uganda, you cannot ask Kenya to exercise diplomatic
protection on your behalf.
Where the individual is a national of more than one state the test applicable is that of
“dominant nationality”, i.e. the nationality of the state with which the individual has a effective
or genuine link.
This is illustrated by the Nottebohm Case (Leichtenstein vs Guatemala) 1955 ICJ Rep. 4.
CASE
Nottebohm Case (Leichtenstein vs Guatemala) 1955 ICJ Rep. 4.
Where the ICJ held that a state cannot espouse a claim on behalf of a person who has its nationality
but has no real and effective link with that state at least if that claim is against that other state with
and position of individual to his national state in the case of international protection.
Mr. Friedrich Nottebohm was born as a German national. In 1905 he went to the Guatemala, where he
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This case is a dispute between Liechtenstein and Guatemala. It is based on the actual relation, interest
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which he does have such link.
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started his own successful business. In 1939 he applied for naturalization in Liechtenstein. In the same
year he paid all the fees and taxes, including security deposit (that was about 68 500 Swiss francs.
On the 13th of October 1939 Mr. Nottebohm was naturalized by the Certificate for Nationality
produced by a Supreme Resolution of the Prince. Then he obtained the Liechtenstein Passport and went
to the Guatemala to continue in his business activities. Till 1943 he had fixed abode in Guatemala.
When, on the 17th December 1951 Liechtenstein filed an Application against Guatemala, it claimed
damages in respect of various measures which Guatemala had taken against the person and property of
Mr. Nottebohm. Firstly, Guatemala contended that the court is without jurisdiction. The Court decided
to reject the preliminary objection to its jurisdiction. Then started the main process. Liechtenstein
claimed restitution and compensation on the ground that the Government of Guatemala had acted
towards Mr. Nottebohm, a citizen of Liechtenstein, in a manner contrary to international law.
Guatemala contended that the claim was inadmissible, for example, of nationality of Mr. Nottebohm.
The Court had to deal with the question without consideration of the validity of Nottebohm’s
naturalization according to the Law of Liechtenstein. Nationality itself is within the domestic jurisdiction
of the State. The exercise of State’s domestic jurisdiction does not have automatic international effect.
The problem is real and effective nationality that is, based on strong factual ties between the person and
the State. Other problem is habitual residence of the individual and the centre of his interests, his family
ties, his participation in public life, attachment shown by him for a country etc. Nationality, in the case of
protection has to correspond with the factual situation. The individual has to be closely connected with
the population of a particular State.
At the time of naturalization Mr. Nottebohm had his family, business connections and interest in
Germany, so the application for naturalization in Liechtenstein was not motivated by the desire to
dissociate himself from the Government of his country. Other thing is that he had been settled for 34
years in Guatemala where he stayed until removal as a result of war measures in 1943 and Guatemala
refused to readmit him. Nottebohm started to live in Liechtenstein, because Guatemala refused to
admit him. The naturalization was not based on any real prior connection with Liechtenstein. The
naturalization was not for obtaining a legal recognition and become a part of Liechtenstein population.
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Because of all these reasons the claim of Liechtenstein was inadmissible.
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With respect to the application of the nationality of rules claim to corporations the ICJ in the
Barcelona Traction Case
CASE
Barcelona Traction Case
The ICJ rejected Belgium’s capacity to espouse a claim on behalf of its nationals who were shareholders
in a Canadian company holding that the right of diplomatic protection extends to wrongs done to
companies which have the nationality of the protecting state and that in principle it is only in special
circumstances that international law permit any ‘piercing of the corporate veil’ so as to permit a state to
protect its national shareholders in a foreign company in respect of the loss they suffer because of the
situation of the company.
The court stated, ”Where it is a question of an unlawful act committed against a company representing
foreign capital, the general rule of international law authorises the national state of the company alone
to make the claim.”
However in three instances, the national state of the shareholders will be entitled to assert a
claim for diplomatic protection that is if:
a. The alleged wrong was directed against the shareholders by reason of their nationality.
In Barcelona Traction case, the Spanish, it was said, did not target the Belgian nationals
even though the company was Belgian-owned. They had caused harm not to the
shareholders but to the company as a distinct company.
b. The company has ceased to exist and shareholders of the state are affected.
claim. The lack of capacity could be due to the presence of an agreement between the
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states. I.E that in the event of an injury to the nationals the UK will come to their aid,
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c. The national state of the company lacks capacity to bring/espouse an international
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then Kenya is said to have ceded this power to the UK and when the injury occurs,
Kenya can do nothing.
3) Measure of Reparation
In the Chorzow Case the PICJ held that, “it is a principle of International law that the breach of
an international engagement involves an obligation to make reparation in an adequate form.
This principle has not only been reaffirmed in subsequent international decisions but it is also
reiterated under Article 36 of the Statutes of International Court of Justice which gives the
court jurisdiction in all legal disputes concerning inter alia “ the nature and extent of the
reparation to be made of an international obligation.”
Even as a general rule where any tribunal has jurisdiction to determine a dispute it has
jurisdiction also to determine the nature and measure of reparations.
In the indemnity phase of the Chorzow Factory Case the PCIJ stated this principle as follows:
CASE
Chorzow Factory Case
“It is a principle of international law that the reparation of a wrong may consist in an indemnity
corresponding to the damage which the nationals of the injured state have suffered as a result of the act
which is contrary to international law. The reparation due by one state to another does not, however,
change its character by reason of the fact that it takes the form of an indemnity for the calculation of
which damage suffered by a private person is taken as the measure. The rules of law governing the
reparations are the rules of international law in force between the two states concerned and not the law
governing relations between the state that commits the act and the individual who suffers the damage.
Rights or interests of an individual, the violation of which rights causes damage are always in a different
plane to rights belonging to a state, which rights may also be infringed by the same act. The damage
suffered by an individual is therefore never identical to that which is suffered by a state; it can only
afford a convenient scale for the calculation of the reparation due to the state.”
For example The ICJ, for instance, can’t look at the contract between China Wu Yi and Kenya, it
will apply international rules. The claim ceases to be a private claim once it is taken to the
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international court.
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THE LOCAL REMEDIES RULE
An injured foreign national will not automatically entitled to invoke the diplomatic protection of
his state of nationality.
He must first seek redress from the state which has caused him injury in accordance with that
states domestic legal machinery and only when adequate redress is not forthcoming may the
state of his nationality seek redress on his behalf.
China Wu Yi must seek redress under laws of Kenya before running back to Beijing and ask China
to seek redress against Kenya after its hit the wall.
Action by a state of nationality will in the first place usually take the form of reparations and
negotiations through diplomatic channels.
If this does not result in a satisfactory settlement the injured state may take the matter up more
formally by presenting an international claim against the delinquent state.
China Wu Yi should go to High Court then Court of Appeal and the Supreme Court if it as
jurisdiction of the matter before going to China. And then China can ask Kenya, why have you
not paid them? This is now diplomacy. If Kenya does not budge, then China can go to ICJ.
That the injured foreign national must first seek redress from the state which caused him injury
is now a recognised rule of international law known as the local remedies rule. Where a state
has treated a foreign national inconsistently with its international obligations, but would still
nevertheless by subsequent action secure for the foreigner the treatment required by its
obligations, an international tribunal shall not entertain a claim put forward on his behalf unless
he has exhausted the local remedies available to him in the state concerned. So long as there is
no final announcement on the part of the highest competent authority within the state it cannot
be said that an internationally valid claim has arisen.
The rule is not relevant to complains based on a direct breach of IL which causes immediate
injury to another state and in which that state is not complaining of an injury to one of its
nationals.
This is because states are not subject to the jurisdiction of foreign courts so that direct breaches
The foundation of the rule is the respect for the sovereignty and jurisdiction of the state
competent to deal with the question of claim through its judicial organs.
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of the offending state.
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of International law cannot be subjected to adjudication by the jurisdiction of municipal courts
PUBLIC INTERNATIONAL LAW-GPR 301
This respect is brought about by giving priority to the jurisdiction of the local court of the state
in the case of foreigners.
The justification for the rule is several-fold:
a) An alien resident (here China Wu Yi) in a state should have recourse to local courts before
seeking external assistance from his state if the legal system is to function properly.
b) A state must be given the opportunity to redress by its own means and within its own legal
framework any wrong suffered by an alien before being made internationally responsible. Kenya
be given opportunity to do this before the wrong suffered by WU YI is made international.
c) In cases where the international obligation requires a state to achieve a certain result the
definitive failure to achieve that result and hence the breach of the obligation is not established
until procedures for rectifying ab inito failures have been resorted to and have failed.
d) Until local remedies have been exhausted justice has not been definitely denied. Until China WU
Yi goes up to the last court, can they say they have been denied justice.
e) The nature and extent of damage suffered by an alien and thus the basis for his state’s
international claim is not certain until local remedies have been exhausted.
f)
There is considerable convenience in local courts conducting the initial investigation and
adjudication of the matter and should have the opportunity to do so up to the highest level.
In order to exhaust local remedies the private claimant must have recourse to the entire system
of legal protection as established by corpus of Municipal Law and must be given the opportunity
to adduce before the domestic tribunals all the material evidence reasonably available to him
which might be essential for the winning of his case.
Where he omits or fails to put forward necessary contentions or essential evidence the
respondent state may object that the local remedies have not been exhausted.
See Ambatielos Arbitration Case (Greece v UK) 12 RIAA 83,
CASE
Ambatielos Arbitration Case (Greece v UK) 12 RIAA 83,
Local remedies are not exhausted if an appeal to a higher court is not definitely pressed or proceeded
with or if essential evidence has not been adduced or if there has been a significant failure to take some
brought. These local remedies include not only reference to the courts and tribunals but also the use of
the procedural facilities which municipal law makes available to litigants before such courts and
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“The rule requires that local remedies shall have been exhausted before an international action can be
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step necessary to succeed in the action. In this case the Arbitral Commission said:
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tribunals. It is the whole system of legal protection, as provided by municipal law, which must have been
put to the test before a state as the protector of its nationals, can prosecute the claim on the
international plane.”
There are however certain circumstances in which the rules does not apply.
1. The rule will not apply if in fact there are no available remedies which should
have been pursued. Such in-availability may be due for example to the
immunity of the sovereign from suit under domestic law or to a provision of
domestic law prohibiting suits against the govt in the category of cases of
which alien’s claim belongs. E.g. an Act of Parliament which prohibits any
cases against the govt when there is a case of nationalising foreign assets. You
just go to China direct coz there are no measures to exhaust.
2. The rule may not be applied by reason of obstacles in the domestic law or
procedure. If in the respondent state there are remedies available but if
according to domestic law such remedies are incapable of affording relief or
are inappropriate for the subject matter of the claim then the obligation to
exhaust such remedies will be dispensed with. Similarly if it is not possible for
the superior courts to reverse a decisions of the lower court because of a
procedural or other rule an appeal will not be necessary and in such a case the
local remedies will have been exhausted. Example common in Kenya: Where
Wu Yi suffers injury and Kenya sets up a commission of inquiry. The
commission cannot make any orders for compensation, it is of inquiry. It
comes up with a recommendation. In that case, Wu Yi will not be said to have
not exhausted local remedies.
3. The rule cannot be applied where there is some defect in the administration
of justice such as the complete subservience of the judiciary to the executive
whose acts are the subject matter of the complaint or where the judicial
remedies where there are none. It is for the state claiming that local remedies
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have not been exhausted to demonstrate that such remedies exist. If they are
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tribunal has been appointed under a law annulling the private rights in issue in
the claim.In other words, there can be no claim of failure to exhaust local
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shown to exist it is for the opposing party to show that they were exhausted
or that they were inappropriate to the subject matter of the claim. However,
the requirement to exhaust local remedies can be dispensed with through
treaty but this must be explicitly stated.
See Interhandel Case (Switzerland v USA)
CASE
Interhandel Case (Switzerland v USA)
The United States seized the American assets of a company owned by the Swiss firm Interhandel, in
1942, which was suspected of being under the control of a German enterprise. In 1958, after nine
years of litigation in the US courts regarding the unblocking of the Swiss assets in America,
Switzerland took the matter to the International Court of Justice.
However, before a decision was reached, the US Supreme Court readmitted Interhandel into the
legal proceedings, thus disposing of Switzerland's argument that the company's suit had been finally
rejected.
The Court dismissed the Swiss government's claim since the local remedies available had not been
exhausted. Criticism has been levelled against this judgment on the ground that litigation extending
over practically ten years could hardly be described as constituting an 'effective' remedy. However,
the fact remains that the legal system operating in the United States had still something to offer the
Swiss company even after that time.
THE CALVO CLAUSE
According to the Oxford Law Dictionary: This is a clause in the contract stating that the parties to
the contract agree to rely exclusively on domestic remedies in the event of a dispute .The
contract the foreign national was said to have renounced the protection of his government.
The clause which is named after the Argentine jurist Carlos Calvo (1824-1906) is in effect
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eliminate diplomatic intervention should a dispute arise with a foreign national making such a
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insertion of such a clause in a contract was an attempt originally By Latin America countries to
PUBLIC INTERNATIONAL LAW-GPR 301
superfluous –firstly because diplomatic intervention belongs to states only and thus cannot be
renounced by an individual and secondly because the exhaustion of local remedies is always
taken to be a condition precedent to appealing for diplomatic intervention. Since 1930 such
clauses have not been used in International disputes.
Named by an Argentinean Jurist is a stipulation in a concession contract between a foreign
national and a government under which the foreign national agrees not to seek the diplomatic
protection of his state and submits any matters arising from the contract to the local
jurisdiction.
The clause may take several forms but it generally provides that ’doubts and controversies that
may arise on account of this contract shall be decided by the competent tribunals of the state in
conformity with its law and shall not give rise to any foreign diplomatic intervention or
international reclamation.’
The object of the clause is therefore to ensure that legal disputes arising out of the contract
shall be referred to municipal courts of the state granting concession or other rights and to oust
jurisdiction of international arbitral tribunals or to prevent any appeal for diplomatic action to
the national state of the company or the individual enjoying the concession.
There is no consensus on the validity and effect of this clause. Reasons: Jurists who argue
against the validity of the stipulation base their arguments on the fact that a private individual
cannot so renounce the right of privilege of his government to protect its nationals abroad and
to see to it that the dignity of the state does not suffer injury through the violence done to its
nationals.
The right of diplomatic protection is a right which belongs to the state and not the individual
and the state cannot be bound by the individual’s renunciation of the right that does not belong
to him.
Those in favour of the stipulation argue that what the individual is waiving is not the right of
Reason: That the presentation of the claim by the state of nationality is not automatic because it
is made only at the request of the injured individual or the corporation.
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the exercise of that right in his favour.
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diplomatic protection possessed by his state of nationality but rather, his own power to request
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Diplomatic protection may not therefore be extended to the individual or corporation in the
light of a freely concluded contract and the request for protection will not be made to the state
of nationality.
Besides if the individual is required to exhaust local remedies available before he calls upon his
state of nationality to intervene on his behalf he must possess a certain discretion in the
management of his case before domestic organs.
That discretion may call for compromise or agreed settlement of his claim.
It is therefore normal in such case to require a waiver by the claimant may further claims.
Despite this doctrinal controversy arbitral decisions have upheld the validity of the Calvo Clause.
For instance in the North American Dredging Company Claim (US v Mexico)
CASE
North American Dredging Company Claim (US v Mexico)
The US/Mexico General Claims Commission, dismissed the claim on the ground that under the clause it
was the duty of the claimant company to use the remedies existing under the laws of Mexico and on the
facts the company had not done this.
The claim was brought by the US on behalf of the N. American Dredging Company of Texas. The claimant
sought compensation for the loss and damage suffered by it because of breaches of its contract of 23rd
Nov 1912 when the govt of Mexico for dredging at Port of Salina Cruz. A.18 of the contract was a Calvo
Clause incorporated as a primary condition which in substance read as follows: “the contractor and all
persons...engaged in the execution of the work under this contract...shall be considered as Mexicans in
all matters...concerning the execution of such work and the fulfilment of this contract. They shall not
claim...any other right or means to enforce the same than those granted by the laws of the republic of
Mexico...They are consequently deprived of any rights as aliens, and under no conditions shall the
intervention of foreign diplomatic agents be permitted, in any matter related to this contract.”
Dealing with the validity of the Calvo Clause, the Commission stated that the clause was part of the
contract and had to be upheld unless it was repugnant to a recognised rule of international law. The
Commission found that a contractual clause purporting to restrict or exclude the rights normally owed
to an alien would be valid to the extent that it did not preclude diplomatic protection and foundations of
As
to
the
capacity
of
an
alien
to
contract
out
of
the
international..................................with respect to his treatment the Commission denied that the rules of
international law applied only to states and that they bestow no such rights on the individual. But the
Commission found that the claimant having agreed to A.18 in the contract could not rightfully present
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law.
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international
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breach of contract claim to his government for its ................................................therefore dismissed the
US claim. The Commission held “...the present claimant is precluded from presenting to its government
any claim relative to the interpretation or fulfilment of this contract. If it had a claim for denial of justice,
for delay of justice or gross injustice, or for any other violation of international law committed by
Mexico to its damage, it might have presented such a claim to its government which in turn could have
espoused it and could have presented it here...The claim as presented...is not a claim that may be
rightfully presented by the claimant to its govt for espousal and hence is not cognisable here.”
The Commission’s decision is still the leading case on the contractual renunciation of diplomatic
protection through Calvo clauses.
Generally, a breach of a private law contract will not be an international wrong unless there is a denial
of justice in the cause of exhausting local remedies. In practice, therefore, the effect of the Calvo Clause
in arbitration is in the absence of a denial of justice to prevent contractual disputes becoming inter-state
proceedings.
SUMMARY OF THE CASE
North American Dredging Co. Claim (US v Mexico).
FACTS
This case is before this Commission on a motion of the Mexican Agent to dismiss.
It is put forward by the United States of America on behalf of North American Dredging
Company of Texas, an American corporation, for the recovery of the sum of $233,523.30 with
interest thereon, the amount of losses and damages alleged to have been suffered by claimant
for breaches of a contract for dredging at the port of Salina Cruz,
The contract was entered into between the claimant and the Government of Mexico, November
23, at Mexico City.
Article 18 of the contract(Calvo Clause), incorporated by Mexico as an indispensable provision,
not separable from the other provisions of the contract, was subscribed to by the claimant for
The jurisdiction of the Commission is challenged in this case on the grounds that claims based
on an alleged nonperformance of contract obligations are outside the jurisdiction of this
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ISSUE
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the purpose of securing the award of the contract.
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Commission and
that a contract containing the so-called Calvo clause deprives the party subscribing said clause of
the right to submit any claims connected with his contract to an international commission.
THE CALVO DOCTRINE
The principle, named after Carlos Calvo, an Argentine jurist, has been applied throughout Latin
America and other areas of the world.
The Calvo
Doctrine is
a foreign
policy
doctrine which
holds
that jurisdiction in
international investment disputes lies with the country in which the investment is located.
The Calvo Doctrine thus proposed to prohibit diplomatic protection or (armed) intervention
before local resources were exhausted. An investor, under this doctrine, has no recourse but to
use the local courts, rather than those of their home country.
Calvo justified his doctrine as necessary to prevent the abuse of the jurisdiction of weak
nations by more powerful nations.
It has since been incorporated as a part of several Latin American constitutions, as well as many
other treaties, statutes, and contracts. The doctrine is used chiefly in concession contracts,
the clause attempting to give local courts final jurisdiction and to obviate any appeal to
diplomatic intervention.
JUDGEMENT
1.THE CALVO CLAUSE
The Judges are in a fix between on one side acknowledging the legitimate desire on the part of
nations to deal with persons and property within their respective jurisdictions according to their
own laws and to apply remedies provided by their own authorities and tribunals, and the
restrictive effect of such laws on their international obligations or upon the correlative rights of
other nations protected under rules of international law.
The problem presented in this case is whether such legitimate desire may be accomplished
through appropriate and carefully phrased contracts; what form such a contract may take; what
is its scope and its limitations; and does clause 18 of the contract involved in this case fall within
The Commission observed that the validity of a Calvo clause in the terms of a contract cant be
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2.CALVO CLAUSE –STRIKING A BALANCE
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the field where the parties are free to contract without violating any rule of international law?
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out rightly accepted or rejected.
If held valid, it exposing the rights of foreigners to undeniable dangers and if held invalid, it
leaves to the nations involved no alternative except that of exclusion of foreigners from
business.
The Commission held as invalid, any clause in the contract which would enable Mexico or any
other nation to lawfully bind all foreigners by contract to relinquish all rights of protection by
their governments.
The Commission recognized that the right of foreign protection could be waived only in some
forms and not entirely.
It is well known that with the increase of civilization, trade and interdependence between
countries has influenced and moderated the exaggerated of concept of National Sovereignty.
With the progress of civilization, the world has been an advent of individualism. But despite the
advent of individualism, the individual may not, by means of a contract for his best interest, to
any extent loosen his ties which bind him with his nation.
3.LAWFULNESS OF THE CALVO CLAUSE
The task before the Commission was to ascertain whether international law contains a rule
prohibiting contract provisions attempting to accomplish the purpose of the Calvo clause.
The Commission observed that the contested provision, is part of a contract and must be upheld
unless it be repugnant to a recognized rule of international law.
It declared that there exists no international rule prohibiting the sovereign right of a nation to
protect its citizens abroad from being subject to any limitation whatsoever under any circumstances.
4.THE PROMISE
Mexico asked North American Dredging Company of Texas as a condition for awarding it the
contract which it sought, "If all of the means of enforcing your rights under this contract
afforded by Mexican law, even against the Mexican Government itself, are wide open to you,
as they are wide open to our own citizens, will you promise not to ignore them and not to call
directly upon your own Government to intervene in your behalf in connexion with any
The Company by subscribing to this contract and seeking the benefits which were to accrue to
him thereunder, has answered, "I promise".
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and tribunals furnished by Mexico for your protection?"
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controversy, small or large, but seek redress under the laws of Mexico through the authorities
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5.LEGALITY OF THE PROMISE
Under the rules of international law may an alien lawfully make such a promise?
The Commission held that he may, but at the same time held that he can not deprive the
government of his nation of its undoubted right of applying international remedies to violations
of international law committed to his damage.
It was observed that the obvious purpose of such a contract is to prevent abuses of the right to
protection, not to destroy the right itself—abuses which are intolerable to any self respecting
nation.
The purpose of such a contract is to draw a reasonable and practical line between Mexico's
sovereign right of jurisdiction within its own territory, on the one hand, and the sovereign right
of protection of the Government of an alien whose person or property is within such territory,
on the other hand.
6.THE CALVO CLAUSE (Article 18 of the Contract)
"The contractor and all persons who, as employees or in any other capacity, may be engaged in
the execution of the work under this contract either directly or indirectly, shall be considered as
Mexicans in all matters, within the Republic of Mexico, concerning the execution of such work
and the fulfilment of this contract. They shall not claim, nor shall they have, with regard to the
interests and the business connected with this contract, any other rights or means to enforce
the same than those granted by the laws of the Republic to Mexicans, nor shall they enjoy any
other rights than those established in favor of Mexicans. They are consequently deprived of any
rights as aliers, and under no conditions shall the intervention of foreign diplomatic agents be
permitted, in any matter related to this contract."
7.DECISION
The Commission decided that the case as presented was not within its jurisdiction
The Commissioners construe article 18 of the contract before the Commission in this case to
mean that with respect to all matters involving the execution, fulfillment, and interpretation of
that contract the claimant bound itself to exhaust all remedies afforded under Mexican law by
resorting to Mexican tribunals or other duly constituted Mexican authorities before applying to
It was further held that said article 18 was not intended to and does not prevent claimant from
requesting its Government to intervene in its behalf diplomatically or otherwise to secure
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limitation upon any right of claimant.
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its own Government for diplomatic or other protection, and that this article imposes no other
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redress for any wrong which it may heretofore have suffered or may hereafter suffer at the
hands of the Government of Mexico resulting from a denial of justice, or delay of justice, or any
other violation by Mexico of any right which claimant is entitled to enjoy under the rules and
principles of international law, whether such violation grows out of this contract or otherwise
8.CONCLUSION
The clause will not preclude his Government from espousing, or the tribunal from considering,
other claims based on the violation of international law.
PRACTICE QUESTION
Maruma was born at Moshi Tanzania on April 20th 1950 .He was Tanzanian by birth and still possessed
Tanzanian nationality when in October 1979 he married Kalindafake a Malawian lady moved to Zambia
and in October 1984 applied for and was granted naturalization in Malawi
In 1986 Maruma went to Harare Zimbabwe where he took up residence and made the country the
headquarters of his business activities until 1998 although he occasionally went to Tanzania and a few
times to Malawi to visit friends and relatives.
In this year the parliament enacted legislation under which the government requisitioned all foreign
assets and properties .Maruma being dissatisfied with the compensation offered by the government
filed suit in the Supreme Court of Zimbabwe at Harare alleging denial of justice and claiming prompt and
adequate compensation
While the suit was still pending the Zimbabwean authorities arrested Muruma and deported him to
Malawi together with his family.
In 1999 the Government of Malawi institute proceedings in the International Court of Justice at the
Hague against the Government of Zimbabwe in which it sought declaration that in 1998 the Government
of Zimbabwe had acted in a manner contrary to International Law by unlawfully expelling and seizing
the property of Maruma a naturalized Malawian under the nationality laws in Malawi.
i.
The Court has no jurisdiction to hear and determine the claim by Malawi
ii.
Malawi has no right to extend diplomatic relations to Maruma
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inadmissible on the grounds that inter alia that
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In its counter-memorial the Government of Zimbabwe has contended that the claim by Malawi is
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iii.
Maruma has not availed himself of the remedies under Zimbabwean Laws
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Being the junior most member of the ICJ Bench your opinion is heard first.
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LECTURE 14: 26TH APRIL 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
TOPIC 12: DISPUTE SETTLEMENT
In the Mavrommatis Case the PCIJ stated that “a dispute is a disagreement on a point of law or
fact, a conflict of legal views or of interest between two parties.”
The dispute assumes an international character when it is one between states or one between
states and international organizations or between such organizations themselves or between
states and private persons represented however by their national states exercising the right of
diplomatic protection.
Whenever international disputes arise, the international community is always confronted with
the problem of which means to employ to facilitate the settlement of the dispute for the
purpose of maintaining international peace and security.
The practice of states, international customary and conventional law distinguish two basic
means of settlement of disputes:
1. Pacific means of settlement of disputes.
2. Non-pacific means of settlement of disputes.
NB: Disputes can be settled, conflicts cannot.
1. PACIFIC/PEACEFUL SETTLEMENT OF DISPUTES
The general obligations of states to settle their disputes peacefully is enshrined in Article.2 of
UN charter which provides that in the pursuit of fundamental objectives of UN namely the
maintenance of international peace and security all members are bound to settle their
international disputes by peaceful means in such a manner as not to endanger international
peace, security and justice.
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The Organization and its Members, in pursuit of the Purposes stated in Article 1, shall act in accordance
with the following Principles.
1. The Organization is based on the principle of the sovereign equality of all its Members.
2. All Members, in order to ensure to all of them the rights and benefits resulting from membership,
shall fulfill in good faith the obligations assumed by them in accordance with the present Charter.
3. All Members shall settle their international disputes by peaceful means in such a manner that
international peace and security, and justice, are not endangered.
4. All Members shall refrain in their international relations from the threat or use of force against the
territorial integrity or political independence of any state, or in any other manner inconsistent with
the Purposes of the United Nations.
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ARTICLE 2
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5. All Members shall give the United Nations every assistance in any action it takes in accordance with
the present Charter, and shall refrain from giving assistance to any state against which the United
Nations is taking preventive or enforcement action.
6. The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles so far as may be necessary for the maintenance of international
peace and security.
7. Nothing contained in the present Charter shall authorize the United Nations to intervene in matters
which are essentially within the domestic jurisdiction of any state or shall require the Members to
submit such matters to settlement under the present Charter; but this principle shall not prejudice
the application of enforcement measures under Chapter VII.
This obligation is reinforced by Article.33 of the Charter which provides that the parties to any
disputes the continuance of which is likely to endanger the maintenance of international peace
and security shall first of all seek a solution by negotiation, inquiry mediation, conciliation,
arbitration, judicial settlement (go to ICJ), resort to regional agencies (go to African Union) or
arrangements or other peaceful means of their own choice.
PACIFIC SETTLEMENT OF DISPUTES
Article 33
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by
such means.
The Article leaves the parties free to choose the means they consider most appropriate and
acceptable to the circumstances and nature of the dispute.
If the parties fail to make any meaningful attempt to resolve a dispute which threatens
international peace and security, then the Security Council may call upon them to settle the
dispute without specifying what means to use.
However, the Security Council may recommend a particular means of settlement, the actual
terms of settlement and it may also investigate the dispute and set up the machinery for
settlement.
See Article 39
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ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE,AND ACTS OF AGGRESSION
Article 39
The Security Council shall determine the existence of any threat to the peace, breach of the peace, or act
of aggression and shall make recommendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace and security.
The Article gives the Security Council a blank check. The Charter is completely silent. Look then
at Article.24
Functions and Powers
Article 24
1. In order to ensure prompt and effective action by the United Nations, its Members confer on the
Security Council primary responsibility for the maintenance of international peace and security, and
agree that in carrying out its duties under this responsibility the Security Council acts on their behalf.
2. In discharging these duties the Security Council shall act in accordance with the Purposes and
Principles of the United Nations. The specific powers granted to the Security Council for the
discharge of these duties are laid down in Chapters VI, VII, VIII, and XII.
3. The Security Council shall submit annual and, when necessary, special reports to the General
Assembly for its consideration.
The obligation of peaceful settlement of disputes has been reaffirmed by declarations and
resolutions of the UN General Assembly as well as international judicial decisions.
For instance, Resolution 2625 (xxv) of 24th October 1970 proclaims the principle that states
shall settle their international disputes by peaceful means in such a manner that international
peace and security and justice are not endangered and extends this obligation to all states and
not only the member states of the UN.
CASE
Nicaragua Case (Nicaragua v USA) (MERITS) 1986 ICJ Rep. 14,
The ICJ held that the principle of peaceful settlement of international disputes had acquired the status
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In its judgment in the Nicaragua Case (Nicaragua v USA) (MERITS) 1986 ICJ Rep. 14,
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of customary international law. Jurists have in fact argued that it is a rule of jus cogens.
1. NEGOTIATIONS
It is the most frequently and probably the only universally accepted means of dispute
settlement.
It is also the normal method of diplomatic interchange and as such in certain cases negotiation
constitutes a necessary first step before the parties decide to use other procedures in order to
resolve their dispute.
Moreover, often, international agreements now include clauses providing for negotiations as a
prerequisite for other forms of settlement.
Negotiation consists of discussions between the parties to the dispute with a view to reconciling
their divergent opinions or at least understanding their divergent positions.
Negotiations may open up to the parties other peaceful means of settlement especially after
mutual clarification of the complicated issues of the dispute.
The success of negotiation does, however, depend on the mutual goodwill, flexibility,
accommodation and concession of other points.
Negotiation does not involve any third party and this is its main drawback because when a party
denies the existence of a dispute or refuses to conduct meaningful negotiations other means of
dispute settlement must be used.
Negotiation by itself does not solve the dispute. It only narrows disputes to specific points so
that they can be addressed further to bring settlement.
2. INQUIRY
This involves third party investigation of facts surrounding the dispute and as such is normally of
a technical character.
The involvement of a third party although customary is however not imperative.
Many international treaties provide for the establishment of permanent commissions of
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inquiry, fact-finding or investigation in particular conventions relating to protection of human
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Normally, the conclusion of an inquiry, a report containing the factual findings is submitted to
parties to the disputes sometimes with non-binding recommendations to a negotiated
adjustment.
Inquiry requires that the parties involved in a dispute provide their assistance and cooperation
during the investigation which often involves the examination of witnesses and on-site visits.
The object of an inquiry is to establish the precise facts in dispute for purposes of preliminary
explanation. It is not by itself an end to the dispute, just like negotiation.
3. MEDIATION
Mediation involves the participation of a third party whether an individual or individuals, a state
or a group of states or an international organization offering assistance to prevent further
escalation of the dispute and to encourage the contending parties to come together and work
out a mutually satisfactory settlement of their dispute.
Mediation is subject to the consent of the parties to the dispute. The impartiality of the
mediator is of the essence as confidence in and respect for its reliability constitutes necessary
conditions for establishing contact between the parties to the dispute.
The mediator has responsibility of reconciling different claims and improving the atmosphere
pervading the discussion quite often through cajoling the parties into accepting his own
proposals for the solution of the dispute.
It is only when the proposals are adopted and implemented do they become binding.
4. CONCILIATION
Conciliation is quasi-judicial procedure that involves a third party investigation of the basis of
the dispute and the submission of a report embodying suggestions for a settlement.
As such it involves elements of both inquiry and mediation. Conciliation reports are only
proposals and will not constitute binding decisions.
Conciliation reports, however, are flexible and by clarifying the facts and discussing proposals
may stimulate negotiations between the parties to the dispute.
Pragmatism rather than legal considerations govern conciliation proceedings. Conciliation has
been used frequently in respect of cases of a politically delicate nature and of non-justiciable
Besides a number of multi-lateral treaties such as the 1969 Vienna Convention on the Law of
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Treaties (Article.66) and the 1982 UN Convention on the Law of the Sea (Article.284) provide
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disputes.
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for compulsory conciliation which is a more popular alternative to binding procedures for 2
reasons:
1. It satisfies states which wish to have a pre-established mechanism of settling disputes that may
arise under particular treaty
2. It is acceptable to some states that do not wish to have imposed upon them any legally binding
solutions to a future dispute.
5. ARBITRATION
International arbitration is perhaps the most popular means of pacific dispute settlement
besides judicial settlement. Arbitration between states is a different form of arbitration from
that often used in the settlement of civil disputes and from the concept of mixed arbitral
tribunals dealing with claims of natural or legal persons.
International arbitration has in its objects settlement of disputes between states by judges of
their own choice on the basis of respect of law.
Recourse to arbitration implies an engagement to submit in good faith to the award. Arbitration
consists of a panel of persons nominated by the contending states comprising of individuals
competent in questions of international law disclosed by the disputes.
The Chairperson or umpire may be appointed by the parties or the arbitrators already
nominated depending on the provisions of the agreement between the parties.
Agreements sometimes provide for the appointment of a single arbitrator. Island of Palmas
Case was decided by a single arbitrator. In Texaco it was a professor of International.Law in
Paris.
Crucial to the institution of arbitration are the 1899 and 1907 Hague Conventions for the Pacific
Settlement of International Disputes.
Reason: The Conventions established the Permanent Court of Arbitration consisting of an
International Bureau which acts as the Registry of the Court and keeps its records and a
Permanent Administrative Council exercising administrative control over the Bureau.
The members of the court are appointed by states which are parties to one or both of the
Conventions.
Each state may appoint 4 persons with qualifications in international law and all the persons so
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The members of the Permanent Court of Arbitration never meet as a tribunal but are available
for service as members of tribunals which may be created when they are invited to undertake
such service.
In other words the PCA consists not of a court but of machinery for calling into being of tribunals
to hear particular cases. (It is not a building, it is not there, it does not sit as a court, say like ICC).
The International Bureau which compiles the list of arbitrators is the only permanent feature of
the Permanent Court of Arbitration.
States parties are not obliged to submit a dispute to arbitration. Reason: the procedure is
consensual.
The consent may be expressed in arbitration treaties in which the contracting states agree to
submit certain kinds of disputes to arbitration or in specific provisions of general treaties which
provide for dispute with regard to the treaty itself to be submitted to arbitration.
Consent to the reference of a dispute to arbitration may also be expressed by means of a special
agreement called a COMPROMIS and the terms to which it is couched are of extreme
importance.
Why: the jurisdiction of the tribunal and the law to be applied in the proceedings are defined in
relation to the compromis provisions; accordingly, where a tribunal exceeds its power, its award
maybe treated as a nullity and not binding upon the parties.
Arbitration is an adjudicative technique in that the award is final and binding and the arbitrators
are required to base their decisions on law.
The importance of the PCA declined with the establishment of the PCIJ and its successor the ICJ.
However, since 1959, the PCA in its search for revitalization has introduced many initiatives such
as offering its services for arbitration between states and individuals or corporations concluding
in 1968 a cooperation agreement with International Center for Settlement of Investment
Disputes.
Besides, the PCA actively cooperates with the UN and has since 1993 been given the status of
Permanent Observer at the UN General Assembly.
6. JUDICIAL SETTLEMENT
Judicial settlement brought about by a properly constituted international judicial tribunal
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The only general organ of judicial settlement (because there are also other organs that entertain
disputes between states, like the International Tribunal on the Law of the Sea but only limited to
1982 UN convention on the Law of the Sea.)
At present available to the international community is the International Court of Justice
described under Article. 92 of UN Charter as the principle judicial organ of the UN to function in
accordance with the provisions of the Statute of the ICJ which forms an integral part of the UN
Charter. ICC (criminal court to punish persons committing international crimes), ICTR, ICTY and
Nuremberg were not and are not judicial organs BECAUSE they did not and do not settle
disputes between states.
The ICJ is the successor to the PCIJ established under Article. 14 of the Covenant of the League
of Nations.
The Statute of the ICJ entered into force on September 1 1921 and on February 15, 1922 the
court held its opening ceremony at its seat at the Peace Palace in The Hague.
The Permanent Court of International. Justice held it last public seating on Dec 4th 1939.
Between 1922 and 1940 the PCIJ was seized of 66 contentious cases and 28 requests for
advisory opinions.
12 cases were settled out of court and altogether the court rendered 32 judgments and 27
advisory opinions.
All the judges of the PCIJ resigned on January 30th 1946 and the court was dissolved by a
resolution of the UN General Assembly on April 18 1946 the same day the ICJ was inaugurated.
The ICJ is composed of 15 judges 5 of whom are elected every 3 years to hold office for 9 years
and 2 of whom may not be nationals of the same state.
The judges are elected regardless of their nationality from among persons of high moral
character who possess the qualifications necessary for appointment to the highest judicial
offices of their respective countries or who are jury consults of recognised competence in
international law.
The judges are elected by the General Assembly and the Security Council from a list of
candidates nominated by the national groups in the PCA.
Under Article.9 of the Statute of the ICJ the election of the judges must be done in such a way
that the ICJ as a whole body must represent the main forms of civilization and the main legal
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Article 9
At every election, the electors shall bear in mind not only that the persons to be elected should
individually possess the qualifications required, but also that in the body as a whole the representation
of the main forms of civilization and of the principal legal systems of the world should be assured.
Assignment: WHO ARE THE 3 ICJ JUDGES FROM AFRICA?
Judges once appointed are not allowed to perform any political or administrative function or to
engage in any other occupation of a professional nature.
To ensure their impartiality and freedom from government influence, Article.20 of the Statute
requires every judge before assuming or taking up his duties to make a solemn declaration in
open court that he will exercise his powers impartially and conscientiously.
Article 20
Every member of the Court shall, before taking up his duties, make a solemn declaration in open court
that he will exercise his powers impartially and conscientiously.
Article.31 of the Statute provides for the appointment of ad hoc judges under special
circumstances.
Article.34 - 36 provide for the jurisdiction of the Court.
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Article 31
1. Judges of the nationality of each of the parties shall retain their right to sit in the case before the
Court.
2. If the Court includes upon the Bench a judge of the nationality of one of the parties, any other party
may choose a person to sit as judge. Such person shall be chosen preferably from among those
persons who have been nominated as candidates as provided in Articles 4 and 5.
3. If the Court includes upon the Bench no judge of the nationality of the parties, each of these parties
may proceed to choose a judge as provided in paragraph 2 of this Article.
4. The provisions of this Article shall apply to the case of Articles 26 and 29. In such cases, the
President shall request one or, if necessary, two of the members of the Court forming the chamber
to give place to the members of the Court of the nationality of the parties concerned, and, failing
such, or if they are unable to be present, to the judges specially chosen by the parties.
5. Should there be several parties in the same interest, they shall, for the purpose of the preceding
provisions, be reckoned as one party only. Any doubt upon this point shall be settled by the decision
of the Court.
6. Judges chosen as laid down in paragraphs 2,3, and 4 of this Article shall fulfil the conditions required
by Articles 2,17 (paragraph 2), 20, and 24 of the present Statute. They shall take part in the decision
on terms of complete equality with their colleagues.
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Under the provisions of Article. 34(1) and Article.35 (1) only states may be parties to
contentious cases before the court which is open to state parties to the statute of the court.
The court may be open to other states on such conditions as the Security Council may lay down
but such conditions shall not place he parties in a position of inequality before the court.
Article 34
1. Only states may be parties in cases before the Court.
2. The Court, subject to and in conformity with its Rules, may request of public international
organizations information relevant to cases before it, and shall receive such information presented
by such organizations on their own initiative.
3. Whenever the construction of the constituent instrument of a public international organization or of
an international convention adopted there under is in question in a case before the Court, the
Registrar shall so notify the public international organization concerned and shall communicate to it
copies of all the written proceedings.
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Article 36
1. The jurisdiction of the Court comprises all cases which the parties refer to it and all matters specially
provided for in the Charter of the United Nations or in treaties and conventions in force.
2. The states parties to the present Statute may at any time declare that they recognize as compulsory
ipso facto and without special agreement, in relation to any other state accepting the same
obligation, the jurisdiction of the Court in all legal disputes concerning:
a) the interpretation of a treaty;
b) any question of international law;
c) the existence of any fact which, if established, would constitute a breach of an international
obligation ;
d) the nature or extent of the reparation to be made for the breach of an international
obligation.
3. The declarations referred to above may be made unconditionally or on condition of reciprocity on
the part of several or certain states, or for a certain time.
4. Such declarations shall be deposited with the Secretary-General of the United Nations, who shall
transmit copies thereof to the parties to the Statute and to the Registrar of the Court.
5. Declarations made under Article 36 of the Statute of the Permanent Court of International Justice
and which are still in force shall be deemed, as between the parties to the present Statute, to be
acceptances of the compulsory jurisdiction of the International Court of Justice for the period which
they still have to run and in accordance with their terms.
6. In the event of a dispute as to whether the Court has jurisdiction, the matter shall be settled by the
decision of the Court.
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Article 35
1. The Court shall be open to the states parties to the present Statute.
2. The conditions under which the Court shall be open to other states shall, subject to the special
provisions contained in treaties in force, be laid down by the Security Council, but in no case shall
such conditions place the parties in a position of inequality before the Court.
3. When a state which is not a Member of the United Nations is a party to a case, the Court shall fix the
amount which that party is to contribute towards the expenses of the Court. This provision shall not
apply if such state is bearing a share of the expenses of the Court.
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Indeed condition for access to court By states who are not parties to the statute were laid down
by Security Council in 1946; the international court of justice shall be o[en to a state which is
not party to the statute...upon the following conditions, namely, that such state shall previously
deposited to the Registrar of the Court a declaration by which it accepts the jurisdiction of the
court, in accordance to the Charter of the UN and with the terms and subjects to the conditions
of the Statute and rules of the court and undertakes to comply in good faith with the decision(s)
of the court, and to accept all the obligations of a member of the UN under Article.94 of the
Charter.
Article 94
1. Each Member of the United Nations undertakes to comply with the decision of the International
Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered
by the Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the
judgment.
States not members of the UN may become parties to the Statute and hence have access to the
court as per Article.93 (2) of the Charter of the UN.
Article 93
1. All Members of the United Nations are ipso facto parties to the Statute of the International Court of
Justice.
2. A state which is not a Member of the United Nations may become a party to the Statute of the
International Court of Justice on conditions to be determined in each case by the General Assembly
upon the recommendation of the Security Council.
The conditions of their becoming parties will be determined in each case by the General
Assembly upon Security Council recommendation.
The court has no compulsory jurisdiction. Its jurisdiction comprises all cases which the parties
refer to it and all matters specially provided for in the UN Charter or in treaties and Conventions
States parties to the Statute of the Court may at any time declare that they recognise as
compulsory ipso facto and without special agreement in relation to any other state accepting
the obligation, the jurisdiction of the court in all legal disputes concerning:
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in force.
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a. The interpretation of a treaty
b. Any question of international law
c. The existence of any fact which if established would constitute a breach of an int. obligation
d. The nature or extent of reparation to be made for the breach of an international obligation
The declaration may be unconditional or on condition of reciprocity on the part of several or
certain states maybe of indefinite duration or a limited time only and may be cancelled or
withdrawn at any time.
In the event of a dispute as to whether the court has jurisdiction in a particular case the matter
shall be settled by the decision of the court itself.
The court’s jurisdiction is two-fold namely:
1. To decide contentious cases and
2. To give advisory opinions
The exercise of the court’s jurisdiction in contentious cases is conditional on the consent of the
parties to the dispute.
Only states can be parties to contentious cases before the court.
However, the court is empowered to obtain or request for important information from public
international organizations relevant to the cases or such organizations as may furnish this
information on their own initiative.
Cases before the court may be referred unilaterally by one party or by the notification of a
bilateral agreement known as a compromis.
Just a by the way: Initiating proceedings in the ICJ
1. A v B-Memorial
2. A/B –By compromis. Here the applicants are also respondents at the same time
The decisions of the court are taken by an absolute majority of the judges present and voting.
No abstentions are permitted on any point voted upon. (Situma said he skipped the liberation
In cases of a tie, the President of the Court has a casting vote. Judges are entitled to deliver
their separate opinion where the judgment of the court does not represent in part or in whole
the unanimous opinion of the judges.
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stage, where junior most member speaks first).
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Under Article. 59 of the Statute, the decision of the court is binding on the parties only and in
respect of that case.
Article 59
The decision of the Court has no binding force except between the parties and in respect of that
particular case.
Under Article.60 the judgment of the court is final and without appeal. However at the request
of either party the court may interpret its judgment when there is a disagreement between the
parties as to its exact meaning and scope.
Article 60
The judgment is final and without appeal. In the event of dispute as to the meaning or scope of the
judgment, the Court shall construe it upon the request of any party.
The implementation of the court’s judgment is provided for under Article. 94 of the UN Charter.
Under Paragraph. 1 of the Article, each member of the UN undertakes to comply with the
decision of the ICJ IN ANY CASE in which it is party.
Under Paragraph. 2 if a party to a dispute fails to comply with the court’s judgment the other
party may have recourse to the Security Council which may make recommendations or take
enforcement measures to give effect to the judgment. In practice that will work if the member
is not a permanent member of the Security Council. See the Nicaragua Case.
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Article 94
1. Each Member of the United Nations undertakes to comply with the decision of the International
Court of Justice in any case to which it is a party.
2. If any party to a case fails to perform the obligations incumbent upon it under a judgment rendered
by the Court, the other party may have recourse to the Security Council, which may, if it deems
necessary, make recommendations or decide upon measures to be taken to give effect to the
judgment.
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Besides rendering authoritative judgments in contentious cases the court is also empowered to
indicate interim measures of protection which ought to be taken to preserve the respective
rights of either party.
Under Article.41 such measures shall be indicated by the court if it considers that the
circumstances so require.
The court has set two conditions for the grant of interim measures
1. The existence of a prima facie case for the exercise of the jurisdiction of the court over the
dispute
2. The existence of a risk of imminent or irreparable damage to the rights of the party seeking
protection.
Article 41
1. The Court shall have the power to indicate, if it considers that circumstances so require, any
provisional measures which ought to be taken to preserve the respective rights of either party.
2. Pending the final decision, notice of the measures suggested shall forthwith be given to the parties
and to the Security Council.
Article 62
1. Should a state consider that it has an interest of a legal nature which may be affected by the
decision in the case; it may submit a request to the Court to be permitted to intervene.
2. It shall be for the Court to decide upon this request.
Article 63
1. Whenever the construction of a convention to which states other than those concerned in the case
are parties is in question, the Registrar shall notify all such states forthwith.
2. Every state so notified has the right to intervene in the proceedings; but if it uses this right, the
construction given by the judgment will be equally binding upon it.
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Further Article.62 and 63 of the statute empower the court to entertain third state’s
interventions in contentious cases before it. This procedure is recognition of the fact that
international disputes and their adjudication may impact the legal interests of other states not
directly involved.
Under Article.62 of the Statute may submit a request to the court to be permitted to intervene
in a case before the court where the state considers that it has an interest of a legal nature
which may be affected by the decision in the case.
Under Article.62 it is for the court to satisfy that there is an interest of a legal nature and permit
the state applying to intervene.
Under Article.63 third state intervention is allowed as of right where the main issue in dispute is
the construction of a multilateral treaty of which the intervening state is a party.
In such cases intervention is as of right and the construction given by the judgement will be
equally binding upon the intervening state. Kenya and Uganda are before the ICJ and have a
dispute regarding interpretation of the Treaty provisions of say an East African Multilateral
treaty, TZ, Rwanda could intervene.
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Whereas the court normally decides in its full composition of 15 judges, the statute allows the
court to use the institution of chambers for the expeditious disposal or for specific categories of
disputes. This is provided for under Article.26 and 29 of the statute.
Article 26
1. The Court may from time to time form one or more chambers, composed of three or more judges as
the Court may determine, for dealing with particular categories of cases; for example, labor cases
and cases relating to transit and communications.
2. The Court may at any time form a chamber for dealing with a particular case. The number of judges
to constitute such a chamber shall be determined by the Court with the approval of the parties.
3. Cases shall be heard and determined by the chambers provided for in this Article if the parties so
request.
Article 29
With a view to the speedy dispatch of business, the Court shall form annually a chamber composed of
five judges which, at the request of the parties, may hear and determine cases by summary procedure.
In addition, two judges shall be selected for the purpose of replacing judges who find it impossible to sit.
Under Article.27 a judgment given by any of the chambers provided under Article.26 and
Article.29 shall be considered as rendered by the court.
Article 27
A judgment given by any of the chambers provided for in Articles 26 and 29 shall be considered as
rendered by the Court.
THE ADVISORY JURISDICTION OF THE ICJ
Article 96
1. The General Assembly or the Security Council may request the International Court of Justice to give
an advisory opinion on any legal question.
2. Other organs of the United Nations and specialized agencies, which may at any time be so
authorized by the General Assembly, may also request advisory opinions of the Court on legal
questions arising within the scope of their activities.
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The advisory jurisdiction of the court is exercised exclusively in favour of the UN organs and
specialized agencies.
Under Article.96 (1) of the UN Charter, the General Assembly and the Security Council are
entitled to make a request for an advisory opinion on any matter and by virtue of Article.96 (2)
of the Charter, other organs and specialized agencies when authorized by the General Assembly,
may also make such a request.
Other agencies such as ECOSOC must get authorization from the General Assembly before
seeking advisory opinion from the ICJ on legal matters only relating to their mandate. For
instance WHO cannot go to ICJ for opinion relating to labor, that is the preserve of the ILO.
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The General Assembly and the Security Council may submit any legal question for the court’s
consideration while other organs of the UN and specialised Agencies are entitled to consult the
court in respect of legal issues arising within the scope of their activities. e.g The Reparations
Case is an example, Western Sahara Case also. These were advisory opinions. The Legality of the
Threat of Use of Weapons was also an advisory opinion...see by who? It was in 1996.
The procedure is that a written request must be laid before the court containing an exact
statement on which an opinion is sought.
Accompanying documents likely to throw light to the question are transmitted to the court at
the same time with the request or as soon after.
The Registrar will then notify the all states entitled to appear before the court and any state or
organization likely to furnish information on the subject with a request for such information.
States and international organizations presenting written or oral statements are entitled to
comment on those made by other states and organizations.
Under Article.67 of the statute, the advisory opinion is delivered in open court just like
judgment in a contentious case.
Article 67
The Court shall deliver its advisory opinions in open court, notice having been given to the SecretaryGeneral and to the representatives of Members of the United Nations, of other states and of
international organizations immediately concerned.
The purpose of the advisory role of the court is to provide legal advice in respect of the
submitted matter and not to settle any particular dispute even though the request is often
related to or has its origin in an existent dispute.
Accordingly the court will not give an advisory opinion if the main point on which an opinion is
requested is decisive of a dispute between certain states and anyone of these states is before
the court. To do so would be to adjudicate without the consent of one party.
Advisory opinions are of a consultative character and therefore not binding on the requesting
entities.
It is up to them to decide on the usefulness of the advisory opinion and choose an appropriate
course of action. However, advisory opinions carry political weight, are complied with in most
cases and have significantly impacted the course of the development of international law.
When states go to the ICJ they do not go to seek an advisory opinion, they go to seek a binding
judgment on a contentious matter.
When pacific and diplomatic means fail to resolve a dispute, resort may be had to forcible
means to impose a solution. These are:
1. War and non-war armed action
2. Reprisals or counter-measures
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NON-PACIFIC SETTLEMENT OF DISPUTE
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1. WAR AND NON-WAR ARMED ACTION
The essence of war is to overwhelm the opponent state and to impose terms of settlement
which that state must obey.
Armed action which falls short of a state of war has also been resorted to. However, given the
limits set by international law within which the force required to overpower the enemy is used
and the express declaration of Article.2(4) of the UN Charter that all members must refrain in
their international relations from the threat of use of force against the territorial integrity or the
political independence or in any other manner inconsistent with the purposes of the UN cases in
which resort has been had to war as a means of dispute settlement are carefully circumscribed.
Prior to the UN Article.12 to 15 of the Covenant of the League of Nations placed primary
emphasis on restricting the right of member states to resort to war in the strict sense in breach
of certain obligations connected with accepting the arbitration or judicial settlement of certain
disputes especially those ‘likely to lead to a rupture.’
The covenant also precluded certain kinds of recourse to non-war hostilities through e.g.
imposing an obligation upon states to seek arbitration or judicial settlement of disputes which
might have entered the stage of active hostilities and the obligation to respect and preserve as
against external aggression the territorial integrity and political independence of other member
states of the Leagues.
In 1928 under the Paris General Treaty for the Renunciation of War as an Instrument of
National Policy (KELLOG-BRIAN PACT) the state parties agreed generally to renounce recourse
to war for the solution of international controversies and as an instrument of national policy.
They also agreed not to seek the solution of dispute or conflict between them except by pacific
means thus covering non-war hostilities.
The UN Charter went further than this two instruments the primary emphasis on war in the
strict sense having disappeared while in its place appeared the conception of ‘threat to the
peace’, ‘breaches of the peace’ and ‘acts of aggression’ covering both war and non-war conflicts.
Under Article.2 of the Charter the member states of the UN agreed to settle disputes by
peaceful means so as not to endanger peace and security and justice and to refrain from the
threat or use of force against the territorial integrity or political independence of any state or in
any other manner inconsistent with the purposes of the UN.
They also bound themselves to fulfill in good faith their obligations under the Charter which
include not only
a) The restriction that in the case of dispute likely to endanger peace and security they
shall seek a solution by peaceful procedures set out in Article.33 to 38 of the Charter
but also
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3. Retorsions
4. Pacific blockades
5. Intervention
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b) The obligation to submit to the overriding peace enforcement functions of the Security
Council including the recommendations and decision that the council may deem fit to
make concerning their hostilities.
CHAPTER VI
PACIFIC SETTLEMENT OF DISPUTES
Article 33
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of
international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation,
conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other
peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by
such means.
Article 34
The Security Council may investigate any dispute, or any situation which might lead to international
friction or give rise to a dispute, in order to determine whether the continuance of the dispute or
situation is likely to endanger the maintenance of international peace and security.
Article 35
1. Any Member of the United Nations may bring any dispute, or any situation of the nature referred to
in Article 34, to the attention of the Security Council or of the General Assembly.
2. A state which is not a Member of the United Nations may bring to the attention of the Security
Council or of the General Assembly any dispute to which it is a party if it accepts in advance, for the
purposes of the dispute, the obligations of pacific settlement provided in the present Charter.
3. The proceedings of the General Assembly in respect of matters brought to its attention under this
Article will be subject to the provisions of Articles 11 and 12.
Article 36
1. The Security Council may, at any stage of a dispute of the nature referred to in Article 33 or of a
situation of like nature, recommend appropriate procedures or methods of adjustment.
2. The Security Council should take into consideration any procedures for the settlement of the dispute
which have already been adopted by the parties.
3. In making recommendations under this Article the Security Council should also take into
consideration that legal disputes should as a general rule be referred by the parties to the
International Court of Justice in accordance with the provisions of the Statute of the Court.
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Article 38
Without prejudice to the provisions of Articles 33 to 37, the Security Council may, if all the parties to any
dispute so request, make recommendations to the parties with a view to a pacific settlement of the
dispute.
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Article 37
1. Should the parties to a dispute of the nature referred to in Article 33 fail to settle it by the means
indicated in that Article, they shall refer it to the Security Council.
2. If the Security Council deems that the continuance of the dispute is in fact likely to endanger the
maintenance of international peace and security, it shall decide whether to take action under Article
36 or to recommend such terms of settlement as it may consider appropriate.
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2. REPRISALS/COUNTER-MEASURES
Reprisals are acts which are in themselves illegal and have been adopted by one state in
retaliation for the commission of an earlier illegal act by another state.
The term ‘counter-measure’ has come to be preferred to reprisals in contemporary international
law.
This is an illegal act that is rendered lawful as a response to a prior illegal act.
The locus classicus on the law of reprisals is the Naulilaa Case (Portugal v Germany).
CASE
Naulilaa Case (Portugal v Germany).
In October 1914, while Portugal was neutral in World War 1, a party of German soldiers and officials
crossed the border from German Southwest Africa (present day Namibia) into the Portuguese colony of
Angola at Naulilaa to discuss with the Portuguese authorities the importation of food supplies into
Namibia from Angola. Due to difficulties in interpreting by the German interpreter, misunderstandings
arose and in the course of the discussion a Portuguese officer seized the bridle of a German official’s
horse and the official struck him. The German officer then drew his pistol and the Portuguese officer
ordered his men to fire. The German official and two German officers were killed and the interpreter
and the German soldiers were arrested by the Portuguese. The authorities of the German SW Africa did
not communicate with Portuguese for redress but in alleged reprisals German troops attacked and
destroyed various forts and coasts in Angola during, October, November and December 1914.
After the war, Portuguese claims were submitted to arbitration by 3 Swiss lawyers. Germany contended
that her actions were justified as reprisals. The Arbitrators states that the death of the Germans at
Naulilaa ‘was not the consequence of acts contrary to international law imputable to either German or
Portuguese officials, either civil or military’ but ‘was purely fortuitous being the result of
misunderstandings’ and ‘of a certain imprudence on the part of the German official.’ As to reprisals the
arbitrators stated that,” Reprisals are an act of self-help on the part of the injured state, responding
after an unsatisfied demand to an act contrary to international law on the part of the offending state.
They have the effect of suspending momentarily in the relations of the two states the observance of this
or that law of international law.
They are limited by the experience of humanity and the rules of good faith, applicable in the relations of
state with state. They would be illegal if a previous act contrary to international law had not furnished a
reason for them.
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Now in this case...there has been evident disproportion between the incident of Naulilaa and the six acts
of reprisals which followed it. The arbiters conclude that the German aggressions of October, November
and December 1914, on the Angolan frontier, cannot be considered as lawful reprisals for the Naulilaa
incident...,in view of lack of sufficient occasion, of previous demand and of admissible proportion
between the alleged offence and the reprisals taken.”
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They aim to impose on the offending state reparation for the offence or the return to legality in
avoidance of new offences...The necessity of a proportion between the reprisals and the offence would
appear to be recognised....Even if one admitted that international law does not require that the reprisal
be approximately measured by the offence, one should certainly consider as excessive, and thus illegal,
reprisals out of all proportion with act which motivated them.
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Reprisals are only justified if their purpose is to bring about a satisfactory settlement of a
dispute. Hence they are resorted to only when negotiations have failed.
Besides, although the requirements stated in the Naulilaa case are still applicable, they now
have to be interpreted in the light of Article.2 (4) of the UN Charter that prohibits the threat or
use of force against the territorial integrity and political independence of states.
Accordingly, reprisals short of force may still be undertaken legitimately while those involving
the use of armed force may be lawful if resorted to in conformity with the right of self-defence.
Reprisals may also take the use of economic or political force against the delinquent state such
as a boycott of its goods, an embargo, a naval demonstration or bombardment.
3. RETORSIONS
These are acts which although unfriendly are not illegal under International Law. They are
unfriendly and harmful acts taken in retaliation for the injurious, discourteous or inequitable
legal activities of another state.
In other words, retorsions are legitimate methods/actions of showing displeasure of hurting
another state while remaining lawful.
Being lawful, there is no requirement for proportionality in the cases of acts of retorsions.
Examples include the severance of diplomatic relations, revocation of diplomatic privileges, or
withdrawal of fiscal or tariff concessions.
In 1990 Kenyan Govt declared Norwegian ambassador a PMG because he had insisted we
dropped the criminal charges against Koigi Wamwere who had allegedly come with arms to
overthrow the govt. Kenya refused to release Wamwere, gave him 48 hours to leave Kenya,
Norway retaliated by stopping any aid and severed diplomatic relations with Kenya.
Retorsion may also cover the instance of a lawful act committed by retaliation to a prior
unlawful activity.
Retorsions are distinguishable from reprisals in the sense that reprisals consist of acts which
would generally otherwise be illegal whereas retorsions consist of retaliatory conduct to which
no legal objection can be taken.
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Article 42
Should the Security Council consider that measures provided for in Article 41 would be inadequate or
have proved to be inadequate, it may take such action by air, sea, or land forces as may be necessary to
maintain or restore international peace and security. Such action may include demonstrations, blockade,
and other operations by air, sea, or land forces of Members of the United Nations.
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4. PACIFIC BLOCKADES
Pacific blockades are measures employed in times of peace and designed to coerce the states
whose ports are blockaded into complying with a request for satisfaction by the blockading
state.
Pacific blockades may also be instituted by the UN Security Council under Article. 42 of the UN
Charter but are now largely obsolete and their admissibility as unilateral measures in
questionable in light of the provisions of the UN Charter.
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Kenya cannot do it single-handedly but at the behest of an international organization such as the
Security Council, or say the African Union.
A blockade must be limited to the coasts and ports occupied or owned by the delinquent state.
It must not bar access to neutral coasts or ports and neutral vessels are entitled to notification
of a blockade before they can be made prize for its attempted violation.
In other words a blockading state has no right to seize ships of third states which endeavour to
break a pacific blockade unless it has declared a belligerent blockade that is there must be
actual war between the blockading state and the blockaded state for the former to be entitled
to search neutral shipping. Hence in the absence of actual war the blockading state cannot
impose on the third state the obligations and inconveniences of neutrality. (See The Alabama
Arbitration Case ).
5. INTERVENTION
The term ‘intervention’ is used to indicate forcible action of some type taken in the interference
in the affairs of a state by another state, several states or by a collectivity of states.
The duty imposed by Article. 2(7) of the UN Charter not to intervene in the internal affairs of
another state is a correlative duty associated to sovereignty and independence and binding on
all states.
States will always intervene. International law forbids such intervention that serves by design or
implication to impair the political independence of the territory whose territory has been
intervened in.
An intervention is prohibited by International Law if:
A. It impeaches on matters as to which each state is permitted to make decisions freely e.g. choice
of political or economic policies of foreign policy.
B. If it involves interference in regard to this freedom by the methods of coercion especially force.
Intervention may be internal as where a state interferes between the disputing sections of
another state or external as where a state interferes in the relations of other states or punitive
as where a state takes reprisals for an injury suffered at the hands of another state or imposes a
pacific blockade in relation to a gross breach of a treaty.
The exceptional cases in which a state has legitimate right of intervention under International
Law:
1. Collective enforcement by an enforcement action under authorization by UNSC under Article.
2(7)
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a) There is a threat of imminent injury or death.
b) The state in whose territory the nationals are located is unwilling or unable to protect
them.
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2. Intervention to protect the rights and interests or personal safety of nationals or the states own
property abroad. The right of a state to use force to protect its nationals abroad will be justified
when,
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c) The intervention is exclusively confined to the rescuing of the nationals and d. The
action must be expected to save more lives than are likely to be destroyed. Examples
include the July 2nd 1976 Entebbe raid by Israel and the October 1983 US invasion of
Grenada.
3. Individual or collective self defence if intervention is necessary to meet danger of armed attack.
4. In the affairs of a protectorate under its dominion as its protecting power.
5. If the state subject of the intervention has been guilty of a gross breach of international law in
regard to the intervening state as for instance if it has itself unlawfully intervened.
Except where the UN Charter permits it, intervention must not go so far as the threat of force
against the territorial integrity or political independence of any state. Again there will be the
issue of proportionality here.
PRACTICE QUESTION
Because it is well established rule of international law that no state can, without its consent,be
compelled to submit its dispute with other states judicial settlement and because relatively few
international disputes are settled by the International Court of Justice as “the principal judicial organ of
the United Nations” the international community cannot be said to have an effective legal and
institutional settlement of international disputes” ANON
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Critically discuss the international dispute settlement procedure in light of the above statement.
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LECTURE 15: 4TH MAY 2014- SATURDAY 11.00-2.00PM (LECTURE HALL B2)
I.
II.
III.
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States are always in a state of evolution.
State succession arises when there is a definitive replacement f one state by another in respect
of sovereignty over a given territory in conformity with International Law.
International law recognises to dissolve a state in a peaceful way and to create a new or new
states on the territory of the former state.
State succession is an umbrella term for a phenomenon that occurs upon a factual change in
sovereign authority over a particular territory.
Besides being legal persons under International Law states are political entities that are subject
to change in that new states appear and old ones disappear.
The political events concerned include total dismemberment of a state existing, secession from
an established state, merger of existing states, partial cession or annexation of state territory
or the exercise of the right of self-determination by non-self governing peoples. In the case of
the replacement of a mandate or a trusteeship by a sovereign state a special type of legal
competence rather than sovereignty is the one which is replaced.
Temporary changes resulting from occupation by belligerent forces or grants of possession by
treaty do not amount to succession.
State succession raises a number of important legal issues as to ownership of public property,
obligation as to public debts and burdens under international agreements. For instance
is the successor state bound by all or any of the treaties to which the predecessor was a party?
Do the inhabitants of the territory concerned become automatically nationals of the successor
state?
Is the successor state affected by international claims involving the predecessor by the
predecessor’s national debt and his other obligations under the system of municipal law
replaced?
Three competing theories have been advanced by jurists in addressing these issues. The theories
of universal succession, clean slate (tabula rasa) and partial succession respectively provide for
the new state succeeding to all, none or part of the predecessor rights and responsibility.
Often the theory used in practice depends on the type of succession or in the case of int.
agreements the type of treaty involved. Clean slate was associated with Nyerere who said they
were not inheriting anything, any burdens by the UK. In Kenya we succeeded to the treaties n put
some under consideration for two years.
Besides, the 1968 Vienna Convention on Succession of States in Respect of Treaties addresses
some of these issues.
Article.6 of the Convention makes clear that the Convention applies only to state succession
‘occurring in conformity with International Law’ in particular the principles of International Law
embodied in the UN Charter.
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This provision is intended to ensure that the convention does not bestow any legitimacy on
conquest and other conquest of territory through unlawful use of force.
Besides Article 7 provides that the convention applies only in respect of a succession of state
which has occurred after the entry into b force of the convention except as may be otherwise
agrees independently of the convention.
Article. 8 declares that customary international law rule that a state is not generally bound by
the treaties of a predecessor state in consequence only of the fact that the predecessor and the
successor state have concluded an agreement providing that obligations or rights created
thereby shall devolve upon the successor state.
Neither does a unilateral declaration by a successor state ..................................However much of
the convention favours continuity in treaty relations.
Article.11 provides that a succession of state does not as such affect a boundary established by
a treaty or obligations and rights established by a treaty and relating to the regime of a
boundary.
Similarly under Article 12 a succession of state does not affect treaties relating to the enjoyment
or use of any territory for the benefit of a foreign state or restrictions placed upon the use of
any territory.
Article.31 provides that when two or more states unite newly united successor state is bound by
the treaties of all the predecessor states with respect to the former territories covered formally
by those treaties and potentially with respect to the entire territory of the new state if it and its
territory partners agree.
Conversely Article.34 provides for continuity when a state splits apart. In that case the new
smaller successor states are presumptively bound by the treaties of the predecessor states.
Similarly Article.35 provides that a state that loses territory remains bound by its treaties unless
they apply only to the lost territory.
However a successor state is bound by rules of a treat which are generally accepted as
declaratory of general International Law.
Accordingly under Article.13 the convention does not affect provisions of international law
affirming the permanent sovereignty of every people and every state over their natural wealth
and resources.
Further the convention rejects continuity in treaty succession for newly independent states
thereby incorporating the clean slate theory.
Accordingly under Article.16 a newly independent state is not bound to maintain in force or to
become a party to any treaty by reason only of the fact that at the date of the succession of
states the treaty as in force with respect of the territory to which the succession of states relate.
A newly independent state is defined as a successor state the territory of which immediately b4
the date of the succession of states was a dependent territory for the international relations of
the predecessor was responsible.
The clean slate rule for such states is designed to acknowledge that former colonies may not
have consented to the predecessor treaty in any meaningful sense.
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However under Article.17 a newly independent state may by a notification of succession
establish its status as a party to any multilateral treaty which at the date of succession of states
was in force in respect of the territory to which the succession of states relates.
This provision is consistent with state practice. A bilateral treaty which at the date of succession
of state was in force in respect of the territory to which the succession of state relates is
considered to be in force between a newly independent state and the other state party when:1. They expressly agree so
2. By reason of their conduct they are considered as having so agreed
With respect to public property it is generally considered that succession to the property is a
principle of customary international law. For instance, how state house was inherited. It was
previously government house.
Britain could not possibly go with the building. i.e. the successor of the state is free within the
limits if general international law to change the status of state property as a consequence of its
sovereignty.
In principle, the immovable property situated within the territory of the successor state passes
to that state.
Immovable property passes to the successor state in so far as it is connected to the activity of
the predecessor state in respect to the territory to which the successor state relates.
This is provided by Article.16 of the 1983 Vienna Convention on Succession of State in Respect
to State Property, Archives and Debts which provides that when two or more states unite, the
successor inherits the property of the predecessor.
When part of the territory of a state is transferred to another, Article.14 provides that the
succession of state property should be accomplished by the agreement between the
predecessor and the successor states.
In the absence of such agreement Article.14 (2) provides that immovable property in the
transferred territory will pass to the successor state and that movable property should pass if
“connected with the activity of the predecessor state in respect of the territory in question.”
Article.17 and Article.18 provide that in the case of separating and dissolving states, successor
state do succeed immovable property connected with the activity of the predecessor state with
respect to that territory while movable property should pass to the successor state(s) in
equitable portion. (HAILLE SELASIE CASE).
With respect to newly independent states Article.15 provides that such state is entitled to
immovable property in the transferred territory unless the new state and its predecessor
otherwise agree and even then such agreement shall not infringe on the permanent sovereignty
of every peoples over their natural resources and wealth.
The successor state has a right to take up the fiscal claims belonging to the predecessor state
including the right to collect taxes due.
However, there is no rule established and no consensus with respect to the debts of the
predecessor state.
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The rationale for this practice is two-fold:
1. The doctrine of clausula rebus sic stantibus: That the evolution from subject to sovereign status
of a former colony or independent territory effects such a fundamental change in the position of
the parties as to render absolute any agreement, the objects of which are incompatible with the
change of circumstances.
2. The principle of pacta tertis nec nocent nec pasunt i.e. a treaty does not create rights for third
states without its consent. This operates to relieve the third party (new state) from inheriting
such agreement
In so far as new states may succeed to treaty obligations of their predecessors under principles
of general International Law or the 1978 Vienna Convention, Membership in International
Organization.
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Some jurists have concluded that in cases of annexation or dismemberment as opposed to
cession where the ceding state remains in existence, the successor is assumed to inherit all
public debts of the predecessor or annexing state.
This conclusion seems to be in line with provisions of Article.36-41 of the convention which
provides for the passing of the state debt to the successor state as a general principle with a
reduction according to an equitable proportion in the cases of transfer of parts of a state,
cessation or dissolution of a state.
Where two or more states unite the general rule is that the new larger state simply inherits the
debts of its predecessors.
However, when the successor state is a newly independent state no state debt shall pass except
by agreement.
Such states are liberated not only from their colonial masters but also from their colonial
masters’ debts. Article.38: “No state debt of the predecessor state shall pass to the newly
independent state unless an agreement between them provides otherwise.”
Such agreement must not infringe on the permanent sovereignty of such state and its
implementation may not endanger the fundamental equilibria of the new state.
Evidence of state practice also supports the clean slate or the optional doctrine of state
succession of debts.
The creation of new states whether attained by an orderly progressive transfer of power to
independent territories or by revolution always affects the hitherto existing treaties between
the colonial powers and the third parties.
State practice shows various attitudes namely:
1. Although most treaties survive independence most of them are got rid of by utilisation of
renunciation clauses
2. The new state may select which treaties it wishes to continue with and is entitled to regard
others as having lapsed
3. Only a restricted class of treaties e.g. boundary and river treaties survive as a matter of law.
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This position is governed by the provisions of constituent instrument of the organization
concerning membership e.g. in the UN all newly independent successor states are required to
apply for membership of the organization.
SELF-DETERMINATION
Although the right of self determination has been one of the most important driving forces in
the new international community and has been expressly recognized in the charter of the UN
and several other international legal instruments there is no general consensus on what it
means or entails.
Historically it is associated with and has been instrumental in the principle tremors of
international relations Politically it’s a concept which is at one and the same time both radical
and subversive, thereby creating some of the thick ambivalence of state towards international
legal order.
The right of self determination has justified both establishment of new state and at a later time
the disintegration of same those state.
Because its application undermines the sovereignty and territorial integrity of state it challenges
the stability of international community.
Jurisprudentially, self-determination is a powerful expression of underlying tension and
contradiction of international legal theory reflecting the cyclical oscillation between positivism
and natural law between emphasis on causes and emphasis of binding objective legal principles.
Because of its multi faceted nature some jurist decline to treat self-determination as right of an
absolute nature stressing that it must be considered between the consent of the group claiming
a right to exercise it, self determination is not an individual right but rather a collective right.
For instance Oppenheim says that self determination is the right of a people to choose a form of
government under to which they wish to live or the sovereignty which they wish to be subjects.
Brownlie says that self-determination is the right of a cohesive natural group or groups to
choose for themselves a form of political org and their relation to other groups. That choice may
entail independence as a state association with other groups in a federal state or autonomy or
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assimilation in a unitary state.
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EVOLUTION OF THE PRINCIPLE OF SELF
The right to self determination now an international legal` principle developed out of political
contest. The 1st authoritative enunciation of the principle is found in the 1776 American
declaration of independence where in the emphasis of the right of a people to severe the bonds
which linked them to other people and to have their own sovereignty is expressed.
Self determination can also be traced to the 1879 French Revolution which marked the demise
of the notion that individuals and peoples as subjects of the king were objects to be transferred
alienated ceded or protected in accordance with the interest of the monarch.
The principle was strongly supported by Lenin and Woodrow Wilson during WW1 and Mahatma
Gandhi and Nkrumah in the period of decolonization although in deferring versions.
The core of the principle lies with the American and the French existence that the government
must be respect of the people.
Because of its origin as a political postulate, it has been subject to political construction mainly
by the political groups who wanted to attain political independence and sovereignty.
During the 1918-1919 Peace Conference the principle was used to grant independence to
minority groups particularly in central and Eastern Europe and the creation of the mandatory
system under the League of Nations it acquired an international statues when the mandate
undertook to respect the rights of the mandatories to ultimate self- rule and political
independence.
LEGAL SCOPE OF THE PRINCIPLE
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The principle of self determination relates to international subjects and in particular touches
upon both the inner structure and the legal legitimization of subjects on the international plane.
It is a reflection of the new trends emerging in the world community. Self-determination is
entrenched in the caucus of international law in the basis of three key areas:
1. As an anti-colonialist standards
2. As a ban on foreign military occupation
3. As a requirement that all racial and ethnic groups be given full access to government
Peoples under colonial administration or domination have the right to external selfdetermination namely to opt for the establishment of a sovereign state or the free association
or integration with an independent state or the emergence into any other political status freely
determined by them.
The same right accrued to people subjected to foreign military occupation or alien domination
after their obtaining or recovering independence. Any racial or ethnic group denied full access to
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government in a sovereign state is entitled to either external self-determination or internal selfdetermination.
A number of rights and obligations therefore derive from the principle of self-determination.
1. First, states which oppress peoples falling within one of the three categories are duty-bound to
allow the free exercise of self-determination. In particular they are enjoined not to deny this right
forcibly.
2. Second, the peoples entitled to self-determination have a legal right in relation to the oppressor
state as well as a host of rights and claims in regard to other states such as the claim that third
states should refrain from denying states the right to self-determination.
3. Third third states are legally authorized to support peoples entitled to self-determination by
granting them any assistance short of dispatching armed troops. Conversely, they must refrain from
aiding and abetting the oppressing state. Furthermore third states are entitled to claim in principle
respect from states denying self-determination.
In the area of use of force, self-determination has had a two-fold impact.
a) On the one hand, it has extended the general ban on force by bringing about the
prohibition of resort to force by states against racial or ethnic groups in their territory
who are denied equal access to government.
b) On the other hand self-determination has resulted in granting to liberation movements
a legal licence to use force for the purpose of reacting to the forcible denial of selfdetermination by a colonial state and occupying power or a state refusing a racial or
ethnic group access to government.
Besides self-determination has had a significant impact on the most traditional segment of
international law namely the acquisition, transfer and loss of title over territory.
It has cast doubt on traditional legal titles such as colonial conquests and acquisition by cession
of sovereignty over overseas territory.
In addition, as a result of the principle, it is no longer possible for a valid legal title to be
acquired where territories are annexed through breach of self-determination.
It also prevents states from regarding as terra nullius territories inhabited by organised
aggregates lacking the hallmarks of state authority in cases where for instance the sovereign
state previously wielding authority over a territory has abandoned it. (See Advisory Opinion Of
The ICJ In The Western Saharan Case)-Mauritius and Morocco to leave western Saharan coz
that wasn’t terra nullius).
Finally the principle renders null and void treaties providing for the transfer of territory where
such treaties do not include provision for any prior or genuine consultation of the population
involved.
Historically, the right of self-determination has been invoked during two periods.
The first was at the end of World War I when the victims of war were entitled to choose their
political settlements.
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The second was during the period after World War II when the classic empires in Asia and
African came under consideration.
In the first period the peoples who claimed the right to self-determination were nations
primarily defined by the aspects of common territory language and political ...In the post World
War 2 period what was relevant was the existence of a political entity in the form of a territory
irrespective of the ethnic identity or economic self-reliance.
Such political entities were entitled to the right of self determination and ultimate political
independence.
To facilitate this, the UN General Assembly in its Resolution 1514 (XV) on the Declaration on
the Granting of Independence to Colonial Countries and Peoples adopted on December 14th
1960 firmly states that entities which colonialism had bound together would not be disbanded
but would be allowed to get their political independence as autonomous entities.
The General Assembly was concerned with not only the sanctity of colonial borders but also
viewed any changes thereto as a threat to international peace and security.
That is why the Resolution 1514 and the subsequent Resolution 2625 (XXV) on the Declaration
on Principles of International Law Concerning Friendly Relations and Cooperation Among
States in Accordance with the Charter of the United Nations set the precise limits of the right
to self-determination.
Resolution 1514 states that any attempt aimed at the partial or total disruption of the national
unity and territorial integrity of a country is incompatible with the purposes and principles of the
Charter of the UN.
Resolution 2625 states that nothing in the Declaration shall be construed as authorising or
encouraging any action which would dismember or impair totally or in part the territorial
integrity or political unity of sovereign and independent states and further that every state shall
refrain from any action aimed at the partial or total disruption of the national unity and
territorial integrity of any other state or country.
In consequence current international law on self-determination does not allow the demands of
ethnic groups and national, religious, cultural or linguistic minorities in any existing states
thereby refraining from the grant any right of internal or external self-determination to these
groups of people.
Political stability and the territorial integrity of states are important values that states do not
accept being disregarded.
To them indiscriminately granting the right to self-determination to all ethnic groups would pose
a serious threat to international peace and security and bring about the fragmentation of states
into several entities unable to survive.
The right of self-determination is expressly referred to in the charter of the UN. Article. 1(2) of
the Charter sets out the purposes of the UN as being inter alia to develop friendly relations
among nations based on the respect of equal rights and self-determination.
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THE RIGHT OF SELF-DETERMINATION WITHIN THE UNITED NATIONS
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Article.55 of the Charter refers to the principle of equal rights and self-determination of peoples
as the basis for peaceful and friendly relations among nations.
Article 55
With a view to the creation of conditions of stability and well-being which are necessary for peaceful
and friendly relations among nations based on respect for the principle of equal rights and selfdetermination of peoples, the United Nations shall promote:
a. higher standards of living, full employment, and conditions of economic and social progress and
development;
b. solutions of international economic, social, health, and related problems; and inter- national cultural
and educational cooperation; and
c. universal respect for, and observance of, human rights and fundamental freedoms for all without
distinction as to race, sex, language, or religion.
In the context of Article.73 of the UN Charter dealing with the Trusteeship system there is a
legal obligation imposed on UN members who have assumed responsibilities for the
administration of non-self governing territories to promote to the utmost the well-being of the
inhabitants of these territories.
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Article 73
Members of the United Nations which have or assume responsibilities for the administration of
territories whose peoples have not yet attained a full measure of self-government recognize the
principle that the interests of the inhabitants of these territories are paramount, and accept as a sacred
trust the obligation to promote to the utmost, within the system of international peace and security
established by the present Charter, the well-being of the inhabitants of these territories, and, to this
end:
a) to ensure, with due respect for the culture of the peoples concerned, their political, economic,
social, and educational advancement, their just treatment, and their protection against abuses;
b) to develop self-government, to take due account of the political aspirations of the peoples, and
to assist them in the progressive development of their free political institutions, according to the
particular circumstances of each territory and its peoples and their varying stages of
advancement;
c) to further international peace and security;
d) to promote constructive measures of development, to encourage research, and to cooperate
with one another and, when and where appropriate, with specialized international bodies with a
view to the practical achievement of the social, economic, and scientific purposes set forth in
this Article; and
e) to transmit regularly to the Secretary-General for information purposes, subject to such
limitation as security and constitutional considerations may require, statistical and other
information of a technical nature relating to economic, social, and educational conditions in the
territories for which they are respectively responsible other than those territories to which
Chapters XII and XIII apply.
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Further, the practice of the UN Organs has established the principle of self-determination as a
part of the law of the UN.
For instance, the UNGA has on several occasions called upon the member states of the UN to
uphold the principle of self-determination of all peoples and nations.
In its Resolution 1514, the UNGA declared that all peoples have the right to self-determination
and further that by virtue of that right they freely determine their political status and freely
pursue their economic, social and cultural development.
The inadequacy of political, economic, social or educational preparedness should not serve as a
pretext for denying independence.
In its Resolution 2625, the UN General Assembly reaffirmed that by virtue of the principle of
equal rights and self-determination all peoples have the right to freely determine without
external interference their political status and to pursue their economic, social and cultural
development and that every state had the duty to respect that right.
The GA further declared that every state has the duty to promote the realization of this principle
and to render assistance to the UN in carrying out the responsibilities entrusted to it by the UN
Charter regarding the implementation of the principle.
The principle has also been incorporated in a number of international legal instruments and has
been applied by international tribunals.
For instance, the common Article.1 of the 1966 International Covenant on Civil and Political
Rights and 1966 International Covenant on Economic, Social and Cultural Rights provide that
all peoples have the right to self-determination.
By virtue of that right they freely determine their political status and freely pursue their
economic, social and cultural developments.
All people may for their own ends freely dispose of their natural wealth and resources without
prejudice to any obligations arising out of international economic cooperation based upon the
principles of mutual benefit and international law.
In no case may a people be deprived of its own means of subsistence. The Article therefore
confers on the peoples of the contracting parties the right to internal self-determination.
The Advisory Opinions of ICJ concerning W. Sahara and The East Timor Case confirm the
validity of principle of SELF determination in the context of International Law.
THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED
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The Western Sahara Advisory opinion the court referred to Article. 1 and A.55 of UN Charter and
commented:
‘Those provisions have direct and particular relevance for non-self governing territories which are dealt
with under A. 11 of the Charter...the principle of self-determination as a right of peoples, and its
application for the purpose of bringing all colonial situations to a speedy end were enunciated in the G A
Resolution 1514...The validity of the principle, defined as the need to pay regard to the freely expressed
will of the people, is not affected by the fact that in certain cases the G A has dispensed with the
requirement of consulting the inhabitants of the particular territory. Those instances were based either
on the consideration that a certain population did not constitute a ‘people’ entitled to self-
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CASE
Advisory Opinions of ICJ concerning W. Sahara
PUBLIC INTERNATIONAL LAW-GPR 301
determination or on the conviction that a consultation was totally unnecessary, in view of special
circumstances.”The court emphasised that the right of self-determination ‘requires a free and genuine
expression of the will of the peoples concerned.’
CASE
The East Timor Case
In the East Timor Case, the ICJ referred to the right of people to self-determination as having an erga
omnes (that bind everybody) character and being one of the essential principles of international law.
What happened here was like what happened to W. Sahara, only that colonial power was Portugal who
moved without preparing the East Timorians for independence and Indonesia came in.
ICJ told Indonesia to hold their horses because East Timor had right to self-determination and they
exercised this and now they are an independent state.
Although self-determination evolved with the need for people to have the right to freely choose
their own leaders and to be free from any external oppression especially in the form of colonial
rile and has been recognised by the international community as constitution a fundamental
human right applicable to all people there is no consensus as ot its future outside the colonial
and non self governing context.
Can the right be claimed by racial or ethnic cultural or religious groups who come up against the
established political sovereignty such as the French Canadian in Quebec, the Tamil Tigers in Sri
Lanka or the IRA (Irish Republican Army) in Ireland?.
In other words can the right of self-determination be exercised by distinct ethnic or religious
groups within an already independent and sovereign state?
Jurists are divided on this and state practice is not definitive. At one end of the spectrum are
those who argue that any distinct ethnic or religious group whether part of a colonial, federal or
unitary state have the right to self determine.
In their view, self determination exists beyond colonial situation and is available to the people
of a territory that is part of an existing state provided they can achieve the prerequisite of
statehood.
This right of ‘internal self-determination’ enables people within a state to exercise their right of
choosing their political status to the extent of their participation and form of their government.
At the other end there are those who argue that the right to self-determination at least in its
classical sense does not arise outside the colonial context. Why? State practice and the principle
of territorial integrity limit the right of self-determination post colonial context.
The international community has not recognised or supported the right of a people to secede
from a state which they form part in the alleged exercise of self-determination.
THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED
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THE FUTURE
PUBLIC INTERNATIONAL LAW-GPR 301
The right to self-determination has been rejected in favour of territorial integrity of a state.
Indeed the Resolution 2625 clearly subjugates the right of self-determination to the principle of
territorial integrity and political unity.
Furthermore the main purpose of the UN which is the maintenance of international peace and
unity has placed important restrictions on the context of the right of self-determination taking
into account that the exercise of the right beyond the classical context would entail the
disintegration of existent states and fragmentation of newly created states.
The principle of uti possidetis juris is also advanced as a practical limitation to the exercise of
self determination beyond colonial situations.
The purpose of the principle is to protect the territorial integrity and stability of newly
independent states and is of particular relevance to Africa where the tests of culture and
language would lead to the re-drawing of boundaries left behind by colonial administrations.
The principle has become recognised in customary international law and was applied by the ICJ
in the Burkina Faso/Mali case where the court referred to it as a principle logically connected
with phenomenon of obtaining independence whenever it occurs its purpose being to prevent
the independence and stability of states being endangered by fratricidal struggles provoked by
the challenging of frontiers by the withdrawal of the administering power.
PRACTICE QUESTION
a) “The right of self-determination is not applicable beyond colonial or non self governing
situations” Anon
Does this statement accurately describe the future of the right of self-determination?
b) Kamakini is a unitary independent and sovereign republic of Africa .It attained its political
independence as a unitary state in 1975 and was admitted into the membership of both OAU
and UN.
At the end of Kamakini’s independence the people of Mapambano Province who are culturally
and linguistically different from the rest of the country had soughtself determination separately
but the colonial power refused their demand and granted independenceto Kamakini as a single
State.Since then the people of Mapambano Province have been prosecuting a guerilla war in the
name of self determination with the backing of neighbouring state Chuka which is also a
member of both the AU and UN
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Consider the legality of the issues involved.
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Kamakini has protested to the AU and UN about Chuka’s support of the guerilla war stating that
such support is not only a violation of the Constitution of the AU and the Charter of UN but is an
unfriendly act that amount to interference in the domestic affairs of Kamakini.
THESE NOTES HAVE BEEN COMPILED BY JOSEPH MCDONALD PHOTOCOPYING IS PROHIBITED