International Law Notes (Revised)
International Law Notes (Revised)
International Law Notes (Revised)
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International Law Notes by Aamir Mahar
PART I
ANALYSIS OF PAST PAPERS
2000-2016
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2001 Define Nationality. What are neutral Argue in affirmative this statement with
and neutralized states? particular reference to Constitutive Theory of
2002 Explain the various modes of acquiring Recognition.
and losing nationality. What is double 2013 Define Recognition and explain its
Nationality and Statelessness? kinds. Also point out the difference between
2003, 2012 Short Notes: Double nationality recognition of states and governments.
2007 Explain the various modes of acquiring 2015 What is the role of state recognition in
and losing nationality. What is double the commencement of existence of a state?
nationality and statelessness? What are the rules that govern the issues that
arise out of a state ceasing to exits?
RECOGNITION OF STATES 2016 What is Recognition? Discuss Dejure and
2000 What do you understand by Defacto recognitions. Also explain the
'Recognition of States' and 'Recognition of constitutive and declaratory theories of
Governments’? Explain fully the distinction recognition. Discuss the disabilities of
between ‘Recognition Dejure’ and unrecognized states.
‘Recognition Defacto’.
2003 Short Notes: De facto recognition INTERNATIONAL RIVERS
2003 Describe the legal nature of recognition 2001 Write a comprehensive note on
of states, with particular reference to international rivers and international canal.
difference between Defacto and Dejure 2003 Describe international rivers. State the
recognition. principles of law, regulating the use of water
2006 What is the duty of other states in case and navigation in international rivers.
of internal revolt in an independent state? Can
they help the rebels? Under what HIGH SEAS
circumstances recognition may be accorded to 2000 Short Notes: High Seas
the rebels? 2006 Discuss the extent to which a state can
2007 What is meant by recognition of states as claim jurisdiction over the high seas in war
a member of family of nations? State the and peace. Is an appropriation by a state of
different modes of such recognition. the underwater soil allowed in International
2008 Discuss Recognition. Differentiate Law?
between Dejure and Defacto recognition. What 2008 Define High Seas. Explain the concept
are the disabilities of an unrecognized state? of Freedom of High Seas along-with
2010 Define Recognition. Differentiate restrictions over it.
between Defacto and Dejure Recognition. 2016 What is meant by “Freedom of High
2011 "The Subject of Recognition is one of the Sea”? Discuss certain restrictions on it by
most difficult branches of international law, International Law, including right of Hot
not merely from the points of view of Pursuit by the ships of a costal state on the
exposition of principles, but also intrinsically High Seas.
by reason of many difficulties which arise in
practice." Discuss INTERNATIONAL COURT OF JUSTICE
2012 “Non-recognition of a government can 2000 Write a detailed note on the
be amounted to denying the recognition of the International-court of Justice with particular
state itself as it is the governments that do reference to its powers to exercise jurisdiction
international business on behalf of the states.” over disputant states.
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2001 The jurisdiction of international court of Substantiate your answer by arguing from
justice depends on the consent of the parties Article 51 and Paragraph 4 of the Article 2 of
concerned. Discuss. the UN Charter and other recent examples in
2009 How far has the United Nation this regard.
succeeded in developing a comprehensive 2013 Keeping in view the UN Millennium
system of Human Rights protection? Can Development Goals (MDGs): What can be a
emphasis on social justice and Human rights reform agenda in your opinion for making the
lead to a stable International Order? UN more effective?
2013 Explain the structure and powers of the Re-Exam 2013 Keeping in view the powers of
International Court of Justice and assess the the Security Council, what suggestions can
importance of the principles laid down in you give for improving its structure as a
judicial decisions of leading cases as dominant body within UN.
precedents for states.
NEUTRALIZATION
UNITED NATIONS ORGANIZATION 2003 Short Notes: Neutrality
2000 Critically examine the powers and the 2005 Differentiate between Neutralized and
voting procedure of the U.N. Security Neutral States. Discuss the rights and duties
Council. of a neutral state.
2009 How far has the United Nation 2010 Discuss the concept of Neutralization.
succeeded in developing a comprehensive How is it done? Explain the Rights, Duties
system of Human Rights protection? Can and Guarantees given to a Neutralized state.
emphasis on social justice and Human rights Re-Exam 2013 Define the term
lead to a stable International Order? NEUTRALITY and explain the rights and
2009 Keeping in view the objectives of the duties of a neutral state.
charter seeking to establish a mechanism of 2016 Discuss the concept of Neutrality. How
peace and security how far has United a neutral state differs from a neutralized State.
Nations succeeded in confronting changes in Explain the rights and duties of neutral and
Global society? the belligerent states during war.
2011 "The Practice of United Nations
Organization Show that whiles the principle INTERNATIONAL DISPUTES
of Self-Determination is agreed upon, neither 2001 Discuss Kashmir dispute in the light of
the scope of its application nor the method of Right of self determination
decolonization has been settled." Discuss 2001 UN Security Council resolution
2011, 2014 "All the major issues on voting in 2001 Non interference in internal affairs
the Secretary Council are now satisfactorily 2001 Legal status of election in Kashmir
resolved. The real problem today is about the 2001 Simla Agreement
composition of the Security Council." Discuss 2002 What are amicable means of settlement
2011 Elucidate and justify: "The United of international disputes?
Nations inspite of its imperfections is the only 2004 Describe various methods of peaceful
organizations that can save humanity from and amicable settlement of international
disaster and complete annihilation." disputes.
2012 Does the customary international law 2005, 2008, 2010 Discuss amicable means for
grant the right to use force to a state in the settlement of international disputes.
response to a terrorist attack on it?
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2015 ‘Treaties are known by a variety of order to prevent alleged crimes against
differing names, ranging from Conventions, humanity or to uphold human rights norms.”
international Agreements, Pacts, General Discuss.
Acts, and Charters Through to Statues, 2012 Explain with reference to the relevant
Declarations and conventions’. Discuss it in articles of the UN Charter that whether the
the light of laws of its formation, world body is authorized to intervene in the
interpretation and termination. domestic jurisdiction of its member states.
EXTRADITION VETO
2003, 2012 Short Notes: Extradition 2003 What is veto? How, when and by whom
2005 Discuss the concept of extradition. is used?
Explain main principles of extradition. 2012 What is Veto? How, when and by whom
Discuss also the crimes exempted from it is used? What consequences Pakistan had to
extradition. face in the past because of its use by a former
2008 Give precise definition of Extradition. superpower?
Write a comprehensive essay on extradition
by covering all its aspects. SOVEREIGN STATE
2004 Fully explain the duties of a Sovereign
STATE JURISDICTION State with special reference to:
2003 Discuss the term “State jurisdiction” a) Not to interfere in the domestic affairs of
with reference to: another state
1. Maritime belt b) To refrain from use of threat of use force
2. Port against another state
3. Foreigners 2010 Discuss various modes of Acquisition of
4. Floating island Territorial Sovereignty by the states
2009 Define State jurisdiction and explain acknowledged in International Law.
how domestic jurisdiction can be limited by 2012 Lord Curzon once said, “Frontiers are
and reduced by principles of International indeed the razor’s edge on which hang
Law? suspended the modern issues of war or peace,
2016 What is meant by State Jurisdiction? of life or death to nations.” Explain in this
Discuss different types of state jurisdiction light the various modes of acquisition of
under International Law. territory by a state.
INTERVENTIONS HIJACKING
2000 Short Notes: Intervention 2000 Short Notes: High jacking
2004 The frequent ‘Interventions’ have 2004 Explain how the problem of Hijacking
challenged the validity of some of has been dealt with under the International
fundamental principles of International Law. Law?
What are those principles? Discuss in the light
of interventions in Afghanistan and Iraq by TERRORISM
the super-powers. Re-Exam 2013 Terrorism has become an
2006 “Whatever the morality of intervention, international phenomenon - how far are you
states have no right under International Law satisfied with international legal controls of
to intervene on the territory of other states in such criminal conduct.
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PART II
SHORT NOTES OF
INTERNATIONAL LAW
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CONTENTS
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Public International Law – It is the body of rules and principles that are recognized as legally
binding and which govern the relations of states and other entities invested with international legal
personality. Formerly, known as “law of nations” coined by Jeremy Bentham in 1789.
Doctrine of Incorporation – the rules of international law form part of the law of the land and no
further legislative action is needed to make such rules applicable in the domestic sphere. (Sec. of
Justice v. Lantion GRN 139465, Jan. 18, 2000)
This doctrine is followed in the Philippines as embodied in Art. II, Sec. 2 of the 1987 Constitution
which provides that: “The Philippines…adopts the generally accepted principles of international law
as part of the law of the land…” However, no primacy is implied.
It should be presumed that municipal law is always enacted by each state with due regard for and
never in defiance of the generally accepted principles of international law.
(Co Kim Chan v. Valdez Tan Keh)
It is a settled principle of international law that a sovereign cannot be permitted to set up his own
municipal law as a bar to a claim by foreign sovereign for a wrong done to the latter's subject. (US v
Guatemala).
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4. Questions are resolved through state-to-state transactions ranging from peaceful methods like
negotiation and arbitration to the hostile arbitrament of force like reprisals and even war; and,
5. Responsibility of infractions is usually collective in the sense that it attaches directly to the state
and not to its nationals.
CONSTITUTION V. TREATY
Generally, the treaty is rejected in the local forum but is upheld by international tribunals as
ademandable obligation of the signatories under the principle of pacta sunt servanda.
Pacta Sunt Servanda – international agreements must be performed in Good Faith. A treaty
engagement is not a mere moral obligation but creates a legally binding obligation on the parties. A
state which has contracted a valid international obligation is bound to make in its legislation such
modifications as may be necessary to ensure the fulfillment of the obligations undertaken.
The Philippine Constitution however contains provisions empowering the judiciary to annul
treaties thereby establishing the primacy of the local law over the international agreement.
Art. X, Sec. 2(2) provides that “all cases involving the constitutionality of any treaty, executive
agreement or law shall be heard and decided by the Supreme Court en banc, and no treaty, executive
agreement or law may be declared unconstitutional without the concurence of ten justices.”
The Constitution authorizes the nullification of a treaty not only when it conflicts with the
Constitution but also when it runs counter to an act of Congress. (Gonzales v. Hechanova).
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CLASSIFICATION OF STATES
Independent states – having full international personality.
Sovereignty – connotes freedom in the direction by the state in its own internal and external
affairs.
However international law is concerned only with this freedom in so far as it relates to external
affairs; hence, a state which is not subject to dictation from others in this respect is known as an
independent state.
Dependent states – exemplified by the suzerainty and the protectorate and are so called because
they do not have full control of their external relations.
Dependent states fall into two general categories: the protectorate and the suzerainty.
However, there is no unanimity as to their basic distinctions in terms of measure of control over its
external affairs.
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Personal Union – comes into being when two or more independent states are brought together
under the rule of the same monarch, who nevertheless does not constitute one international person
for the purpose of representing any or all of them. Strictly speaking therefore, the personal union is
not a composite state because no new international person is created to represent it in international
relations (e.g. Belgium and the Former Congo Free State from 1885 to 1905).
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6. BELLIGERENT COMMUNITIES
When a portion of the population rises up in arms against the legitimate government of the state,
and such conflict widens and aggravates, it may become necessary to accord the rebels recognition
of belligerency.
For purposes of the conflict, and pending determination of whether or not the belligerent community
should be fully recognized as a state, it is treated as an international person and becomes directly
subject to the laws of war and neutrality.
8. INDIVIDUALS
Traditional concept regards the individual only as an object of international law who can act only
through the instrumentality of his own state in matters involving other states.
Of late, however, the view has grown among many writers that the individual is not merely an object
but a subject of international law. One argument is that the individual is the basic unit of society,
national and international, and must therefore ultimately governed by the laws of this society.
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PURPOSES
The purposes of the Charter are expressed in Article 1 as follows:
Maintain international peace and security;
Develop friendly relations among nations;
Achieve international cooperation in solving international problems;
Be a center for harmonizing the actions of nations in the attainment of these common ends.
PRINCIPLES
The Seven Cardinal Principles (as enumerated in Article 2):
The Organization is based on the principle of the sovereign equality of all its members;
All Members shall fulfill in good faith the obligations assumed by them in accordance with the
present Charter;
All Members shall settle their international disputes by peaceful means;
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;
All Members shall give the United Nations every assistance in any action it takes in accordance
with the present Charter;
The Organization shall ensure that states which are not Members of the United Nations act in
accordance with these Principles; and,
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.
MEMBERSHIP
Two kinds of members in the United Nations
Original – those which, having participated in the United Nations Conference on International
Organization at San Francisco or having previously signed the Declaration by the United Nations of
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January 1, 1942, signed and ratified the Charter of the United Nations. Interestingly, the Philippines
was included as original member although it was not yet a state at the time.
Elective: In addition to the original members, other members may be admitted to the United
Nations by decision of the General Assembly upon the favorable recommendation of the Security
Council.
SUSPENSION OF MEMBERS
As in the case of admission, suspension is effected by two-thirds of those present and voting in
General Assembly upon the favorable recommendation of at least nine members of the Security
Council, including all its permanent members.
The suspension may be lifted alone by the Security Council, also by a qualified majority vote.
Nationals of the suspended member may, however, continue serving in the Secretariat and the
International Court of Justice as they are regarded as international officials or civil servants acting
for the Organization itself.
Since suspension affects only its rights and privileges, the member is still subject to the discharge
of its obligations under the Charter.
EXPULSION OF MEMBERS
A member which has persistently violated the principles contained in the Charter may be expelled by
two-thirds of those present and voting in the General Assembly upon the recommendation of the
Security Council by a qualified majority vote.
WITHDRAWAL OF MEMBERS
No provision on withdrawal of membership was included in the Charter because of the fear that it
might encourage successive withdrawals that would weaken the Organization.
A. The General Assembly: It consists of all the members of the Organization, each of which is
entitled to send not more than five representatives and five alternates as well as such technical staff
as it may need.
Functions of the General Assembly
Deliberative - such as initiating studies and making recommendations;
Supervisory – such as receiving and considering annual and special reports from the other
organs;
Financial – such as consideration and approval of budget of the Organization;
Elective – such as the election of non-permanent members of the Security Council;
Constituent – such as the admission of members and the amendment of the Charter.
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B. The Security Council: The key organ of the United Nations of international peace and security
is the Security Council. It consists of five permanent members and ten elective members. The
elective members are elected for two-year terms.
C. The Economic and Social Council: The responsibility for the promotion of international
economic and social cooperation is vested in the General Assembly, and under its authority, the
Economic and Social Council. Specifically these organs should exert efforts toward:
higher standards of living, full employment, and conditions of economic and social progress and
development;
solutions of international economic, social, health and related problems, and international,
cultural and educational cooperation; and,
universal respect for human rights and fundamental freedoms for all without distinction as to
race, sex, language or religion.
D. The Trusteeship Council: It is the organ charged with the duty of assisting the Security Council
and the General Assembly in the administration of the international trusteeship system.
E. The International Court of Justice: It functions in accordance with the Statute. All members of
the Organization are ipso facto parties to the Statute. A non-member may become a party on
conditions to be determined in each case by the General Assembly upon the recommendation of the
Security Council.
F. The Secretariat
It is the chief administrative organ of the United Nations which is headed by the Secretary-General.
The Secretary-General is chosen by the General Assembly upon the recommendation of the Security
Council. His term is fixed at five years by resolution of the general Assembly, and he may be re-
elected.
The Secretary-General is the highest representative of the United Nations and is authorized to
act in its behalf. When acting in this capacity, he is entitled to full diplomatic immunities and
privileges which only the Security Council may waive.
The Secretary-General also acts as secretary in all meetings of the General Assembly, the
Security Council, the Economic and Social Council and the Trusteeship Council and performs such
other functions as may be assigned to him by these organs.
In addition, he prepares the budget of the United Nations for submission to the General Assembly,
provides technical facilities to the different organs of the Organization, and in general coordinates its
vast administrative machinery.
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SUCCESSION OF GOVERNMENTS
One government replaces another either peacefully or by violent methods. In both instances, the
integrity of the state is not affected; the state continues as the same international person except only
that its lawful representative is changed.
The rule is that where the new government was organized by virtue of a constitutional reform,
the obligations of the replaced government are also completely assumed by the former.
Conversely, where the new government was established through violence, it may lawfully reject
the purely personal or political obligations of the predecessor government but not those contracted
by it in the ordinary course of official business.
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CHAPTER 5: RECOGNITION
Even if an entity has already acquired the elements of international personality, it is not for this
reason alone automatically entitled to membership in the family of nations. Its admission thereto is
dependent on:
as reflective of the majority theory, the acknowledgment of its status by those already within the
fold and their willingness to enter into relations with it as a subject of international law
(declaratory);
as reflective of the minority theory, the acknowledgment is mandatory and legal and may be
demanded as a matter of right by any entity that can establish its possession of the four essential
elements of a state (constitutive).
OBJECTS OF RECOGNITION
Recognition may be extended to:
a. State, which is generally held to be irrevocable and imports the recognition of its government;
b. Government, which may be withdrawn and does not necessarily signify the existence of a state as
the government may be that of a mere colony; and,
c. Belligerency, which does not produce the same effects as the recognition of states and
governments because the rebels are accorded international personality only in connection with the
hostilities they are waging.
KINDS OF RECOGNITION
Express recognition – may be verbal or in writing;
Implied recognition – when the recognizing state enters into official intercourse with the new
member by exchanging diplomatic representatives with it, etc.
RECOGNITION OF STATE
The recognition of a new state is the free act by which one or more states acknowledge the existence
on a definite territoryof a human society politically organized, independent of any other existing
state, and capable of observing the obligations of international law, and by which they manifest
therefore their intention to consider it a member of the international community.
RECOGNITION OF GOVERNMENTS
The recognition of the new government of a state which has been already recognized is the free act
by which one or several states acknowledge that a person or a group of persons are capable of
binding the state which they claim to represent and witness their intention to enter into relations
with them.
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That which is established by the inhabitants of a state who secede there from without
overthrowing its government.
Tobar or Wilson Principle – recognition shall not be extended to any government established by
revolution, civil war, coup d'etat or other forms of internal violence until the freely elected
representatives of the people have organized a constitutional government.
In any event, the practice of most states now is to extend recognition to a new government only if it
is shown that it has control of the administrative machinery of the state with popular acquiescence
and that it is willing to comply with its international obligations.
RECOGNITION OF BELLIGERENCY
A belligerency exists when the inhabitants of a state rise up in arms for the purpose of overthrowing
the legitimate government.
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REQUISITES OF RIGHT: In Art. 51 of the Charter of the United Nations, it is provided that -
“Nothing in the present Charter shall impair the inherent right of individual or collective
self-defense if any armed attack occurs against a member of the United Nations, until the
Security Council has taken the measures necessary for the maintenance of international
peace and security. xxx”
The presence of an “armed attack” to justify the exercise of the right of the self-defense under this
article suggests that forcible measures may be taken by a state only in the face of “necessity of self-
defense, instant, overwhelming and leaving no choice of means and no moment for deliberation.”
THE BALANCE OF POWER: One reason for the organization of regional arrangements is to
provide for the balance of power, which Vattel described as “an arrangement of affairs so that no
state shall be in position to have absolute mastery and dominion over others.”
The maintenance of this balance of power has in a very real way contributed to international peace
although, being an “armed peace,” it is far from the ideal sought in the articles of faith of the United
Nations.
Article 1: (Aggression) – is the use of armed force by a State against the sovereignty, territorial
integrity or political independence of another state, or in any other manner inconsistent with the
Charter of the United Nations.
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NATURE OF INDEPENDENCE
Independence cannot be regarded as importing absolute freedom. It only means freedom from
control by any other state or group of states and not freedom from restrictions that are binding on all
states forming the family of nations.
Thus, a state may not employ force or even the threat of force in its relations with other states
because this is prohibited by Article 2 of the Charter of the United Nations. It may adhere to the
maxim of Pacta Sunt Servanda. The principle of mare liberum will prevent it from arrogating to
itself the exclusive use of the open seas to the detriment of other states. Under the laws of neutrality,
it must acquiesce in the exercise of certain belligerent rights even if this might impair its own
interests or those of its nationals.
Pacta Sunt Servanda – the observance of a state to treaties with other state in good faith.
INTERVENTION: In addition, the state must abstain from intervention. Even as it expects its
independence to be respected by other states, so too must it be prepared to respect their own
independence.
Intervention – an act by which a state interferes with the domestic or foreign affairs of another state
or states through the employment of force or the threat of force.
The use of force is only allowed under the Charter of the United Nations when it is exercised as an
act of self-defense, or when it is decreed by the Security Council as a preventive or enforcement
action for the maintenance of international peace and security.
THE DRAGO DOCTRINE: This doctrine was embodied in the Hague Convention of 1907
through the provision that “ the Contracting Powers agree not to have recourse to armed force for
the recovery of contract debts claimed from the government by the government of another country
as being due to its nationals.
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In Article 2 of the Charter of the United Nations, it is announced that “The Organization is based on
the principle of the sovereign equality of all its Members.”
In the provision of the Montevideo Convention of 1933, “States are juridical equal, enjoy the
same rights, and have equal capacity in their exercise.”
ESSENCE OF EQUALITY
In international law, equality among states does not signify parity in physical power, political
influence or economic status or prestige.
The Principle of Equality – all the rights of state, regardless of their number, must be observed or
respected by the international community in the same manner as rights of other states are observed
and respected.
Accordingly, all members of the United Nations have each one vote in the General Assembly, all
votes having equal weight, and are generally eligible for positions in the various organs of the United
Nations. Every state has the right to the protection of its nationals, to make use of the open seas, or
to acquire or dispose territory.
Under the rule of par in parem, non habet imperium, even the strongest state cannot assume
jurisdiction over another state, no matter how weak.
But this rule of equality itself sometime poses serious questions of inequality. This is so because it
does not take into account the realities of international life, including the greater stakes of the more
populous states in the decision of questions involving the entire community of nations. Such
decisions may affect the interests, not of individual states as such, but of the whole of humanity itself
without distinctions as to color, nationality or creed.
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CHAPTER 9: TERRITORY
Territory – the fixed portion of the surface of the earth inhabited by the people of the state.
As previously observed, the territory must be big enough to provide for the needs of the population
but should not be so extensive as to be difficult to administer or defend from external aggression.
DERELICTION
Requisites of Valid Dereliction
act of withdrawal, and
the intention to abandon
Hence, where the forces of the state are driven away from the territory by the natives, title is not
thereby necessarily forfeited, as it may be that they intend to to return with the necessary
reinforcements to suppress the resistance.
If such intention is not present, the territory itself becomes res nullius or terra nullius, becoming
open once again to the territorial ambitions of other states.
PRESCRIPTION: There is as yet no rule in international law fixing the period of possession
necessary to transfer title to the territory from the former to the subsequent sovereign.
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SUBJUGATION– is when, having been previously conquered or occupied in the course of war by
the enemy, it is formally annexed to it at the end of the war.
Requisites of Valid Subjugation
conquest
annexation
ACCRETION– is a mode of acquiring territory based on the principle of accessio cedat principali. It is
accomplished through both or natural or artificial processes.
COMPONENTS OF TERRITORY
Territory of the State Consists of the Following:
Terrestrial Domain
Maritime and Fluvial Domain
Aerial Domain
Thalweg Doctrine – the boundary line is laid on the river, that is, on the center, not of the river
itself, but of its main channel. Where the boundary river changes its course by a gradual and normal
process, such as accretion or erosion, the dividing line follows the new course; but if the deviation is
violent is abrupt, as by avulsion, the boundary line will continue to be laid on the old bed of the
river, in the absence of contrary agreement.
As for the dividing line on a bridge across a boundary river, the same is laid on the middle of
the bridge regardless of the location of the channel underneath, unless otherwise provided by the
riparian state.
Bays– is a well-marked indentation whose penetration is in such proportion to the width of its
mouth as to contain land-locked waters and constitute more than a curvature of the coasts. An
indentation shall not, however, be regarded as a bay unless its area is as large as or larger than that
of a semi-circle whose diameter is a line drawn across the mouth of that indentation.
The above rules do not apply to the so-called historic bays.
The Territorial Sea– described as the belt of waters adjacent to the coasts of the state, excluding
the internal waters in bays and gulfs, over which the state claims sovereignty and jurisdiction.
Traditionally, the breadth of the territorial sea is reckoned at three nautical miles, or a marine
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league, from the low-water mark. However, many states have since extended their territorial seas, so
that no uniform rule can be regarded as established at present in this regard.
The UN Conferences of the Law of the Sea: Three international conferences had been called so
far to formulate a new law of the sea. The first was held in 1958 at Geneva, Switzerland, and
resulted in the adoption of the Convention on the Territorial Sea and the Contiguous Zone, the
Convention of the High Seas, and the Convention on Fishing and the Living Resources of the High
Seas, and the Convention on the Continental Shelf. It failed however to define the breadth of the
territorial sea. The Philippines did not ratify it because of the absence of provisions recognizing the
archipelago doctrine it was advocating. The second conference, which was held in 1960, also at
Geneva, likewise left unresolved the question on the breadth of the territorial sea. The third
conference, called in 1970 by the United Nations is still in progress.
An archipelago is a group of islands, including parts of islands, interconnecting waters and other
natural features which are so closely interrelated that such islands, waters and other natural features
form an intrinsic geographical, economic, and political entity, or which historically have been
regarded as such.
Hence, in defining the internal waters of the archipelago, straight baselines should be drawn to
connect appropriate points of the outermost islands without departing radically from the general direction
of the coast so that the entire archipelago shall be encompassed as one whole territory. The waters inside
these baselines shall be considered internal and thus not subject to entry by foreign vessels without
the consent of the local state.
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PERSONAL JURISDICTION– is the power exercised by the state over its nationals. It is based on
the theory that a national is entitled to the protection of his state wherever he may be and is,
therefore, bound to it by a duty of obedience and allegiance.
Article 15 of the Civil Code: “laws relating to family rights and duties, or to the status,
condition and legal capacity of persons, are binding upon citizens of the Philippines, even though
living abroad.”
Under Article 16 of the Civil Code: “intestate and testamentary succession, both with respect to
the other of succession and to the amount of succession rights and to the intrinsic validity of
testamentary provisions, shall be regulated by the national law of the person whose succession is
under consideration, whatever may be the nature of the property and regardless of the country
wherein said property may be found.”
Jurisdiction to tax our citizens, even if not residing in the Philippines, is also provided for in our
Internal Revenue Code for income received by them “from all sources.” Indeed, even an alien may
be held subject to the laws of a state whose national interest he has violated, and notwithstanding
that the offense was committed outside its territory.
Article 2 of the Revised Penal Code, for instance, punishes any person who, whether in or
outside our territory, should forge or counterfeit Philippine currency, utter such spurious securities
or commit any crime against our national security or the law of the nations.
TERRITORIAL JURISDICTION
General rule: A state has jurisdiction over all persons and property within its territory.
The jurisdiction of the nation within its own territory is necessary, exclusive and absolute. It is
susceptible of no limitation not imposed by itself. (The Schooner Exchange v McFaddon).
Exceptions:
Foreign states, heads of states, diplomatic representatives, and consuls to a certain degree;
Foreign states and their heads are exempt because of the sovereign equality of states and on the
theory that a contrary rule would disturb the peace of nations. Diplomats and consuls enjoy the
exemption in order that they may have full freedom in the discharge of their official functions.
Foreign state property engaged in non-commercial activities;
By fiction of law, public vessels are regarded as extensions of the territory of the foreign state.
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Acts of state;
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 acts of the government of another, done
within its own territory.
Foreign merchant vessels exercising the rights of innocent passage or arrival under stress;
Innocent passage – navigation through the territorial sea of the state for the purpose of traversing
that sea without entering internal waters, or of proceeding to internal waters, as long as it is not
prejudicial to the peace, good order or security of the coastal state.
Arrival under stress – entrance to another state due to lack of provisions, unseawothiness of the
vessel, inclement weather, or other force majeure, like pursuit by pirates.
Foreign armies passing through or stationed in its territory with its permission;
Such other persons or property over which it may, by agreement, waive jurisdiction.
LAND JURISDICTION
Everything found within the territorial domain of the state is under its jurisdiction. Nationals and
aliens, including non-residents, are bound by its laws, and no process from a foreign government can
take effect for or against them within the territory of the local state without its permission. Also, as
against all other states, the local state has exclusive title to all property within its territory which it
may own in its own corporate capacity or regulate when under private ownership through its police
power for forcibly acquire through the power of eminent domain. Such property is also subject to its
taxing power.
General rule: the internal waters of a state are assimilated to the land mass and subjected to the
same degree of jurisdiction exercised over the terrestrial domain.
Civil, criminal and administrative jurisdiction is exercised by the flag state over its public vessels
wherever they may be, provided they are not engaged in commerce.
Foreign merchant vessels docked in a local port or bay, jurisdiction is exercised over them by the
coastal state in civil matters.
Criminal jurisdiction is determined according to either the English rule or the French Rule.
1. English rule – the coastal state shall have jurisdiction over all offenses committed on board,
except only where they do not compromise the peace of the port.
2. French rule – the flag state shall have jurisdiction over all offenses committed on board such
vessel, except only where they compromise the peace of the port.
THE CONTIGUOUS ZONE– a protective jurisdiction extending beyond the territorial sea, but not
more than 12 miles from the coast of the state. It is necessary to:
prevent infringement of its customs, fiscal, immigration or sanitary regulations within its
territory or territorial sea; and,
punish infringement of the above regulations within its territory or territorial sea.
THE CONTINENTAL SHELF– refers to a) the seabed and subsoil of the submarine areas adjacent
to the coast but outside the area of the territorial sea, to a depth of 200 meters, or beyond that limit,
to where the depth of superjacent waters admits the of the exploitation of the natural resources of the
said areas; and, b) to the seabed and subsoil of similar areas adjacent to the coasts of islands.
The coastal state has the sovereign right to explore the continental shelf and to exploit its natural
resources and for this purpose it may erect on it such installations and equipment as may be
necessary.
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But this right shall not affect the legal nature of the superjacent waters as open seas or of the airspace
above such waters and their use as such by other states shall not be impaired or disturbed.
Exceptions:
Over its vessels. The flag state has jurisdiction over its public vessels at all times, whether they
may be in its own territory, in the territory of other states or on the open seas. Merchant vessels, on
the other hand, are under its jurisdiction when they are within its territory, when jurisdiction is
waived or cannot be exercised by the territorial sovereign, or when such vessels are on the open seas.
Over pirates. Pirates are enemies of all mankind and may be captured on the open seas by the
vessels of any state, to whose territory they may be brought for trial and punishment. Where a pirate
vessel attempts to escape into territorial waters of another state, the pursuing vessel may continue the
chase but is under the obligation of turning over the pirates, when captured, to the authorities of the
coastal state.
In the exercise of the right of visit and search. Under the laws of neutrality, the public vessels
or aircraft of a belligerent state may visit and search any neutral merchant vessel on the open seas
and capture it or its cargo if it is found or suspected to be engaged or to have engaged in activities
favorable to the other belligerent.
Under the doctrine of hot pursuit. If an offense is committed by a foreign merchant vessel
within the territorial waters of the coastal state, its own vessels may pursue the offending vessel into
the open seas and upon capture bring it back to its territory. The pursuit must be continuous or
unabated; otherwise, it will be deemed to have “cooled” and can no longer be resumed.
AERIAL JURISDICTION
There are no traditional rules in international law regarding the rights of the subjacent state to its
aerial domain. Nonetheless, it may be said that the consensus appears to be that the local state has
jurisdiction over the airspace above it to an unlimited height, or at the most up to where outer space
begins. Accordingly, and as a corollary to this rule, no foreign aircraft, civil or military, may pass
through the aerial domain of a state without its consent.
General rule: Under the Convention on Offenses and Certain Other Acts Committed on Board
Aircraft, it is the state of registration of the aircraft that has jurisdiction over offenses and acts
committed on board while it is in flight or over the high seas or any other area outside the territory
of any state.
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PART III
NOTES IN BRIEF
(INTERNATIONAL LAW)
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CONTENTS
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COLD WAR
Political and ideological rivalry between East and West had significant effect on content and
application of international law
Sustained process of decolonisation - increased size and diversity of international community
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Since end of cold war - seen rise of power of non-governmental entities and reduction of freedom of
States to set national policy
SOVEREIGNTY
Art 2(1) states UN "...is based on the principle of sovereign equality of all its members"
Art 2(7) - nothing in charter authorises UN to intervene in "domestic jurisdiction" of a
State - subject to SC's power under Chapter VII
IS IT REALLY LAW?
Some argue it is not law, just international morality - e.g. John Austin (19C English lawyer); not
positive law - duties imposed are enforced my moral sanctions: "by fear on the part of nations... of
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provoking general hostility, and incurring probable evils, in case they shall violate maxims generally
received and respected" Prof. Hart - primitive legal system, lacking secondary rules (rules of
recognition, change and adjudication)
THE STATE
The state as a subject of international law should possess the following qualifications:
a) a permanent population;
b) a defined territory;
c) government; and
d) capacity to enter into relations with the other states.
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THE INDIVIDUAL
As a subject of international law, the individual has both rights and obligations. Rights are manifest
in International Human Rights Law, while obligations are generally encompassed within
International Criminal Law.
What is a State?
Art 1 Montevideo Convention on Rights and Duties of States (1933) (regional American treaty; 16
parties): '[t]he State as a person of international law should possess the following qualifications:
(a) a permanent population;
(b) a defined territory;
(c) government; and
(d) capacity to enter relations with other States [i.e. not subordinated to another State, e.g. Japanese
controlled Manchukuo in 1930s]."
Generally recognised that this definition is codification of customary law: Harris Might be possible
to add further criteria:
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White minority government in British colony of Southern Rhodesia (now Zimbabwe) declared
independence - UN SC called on States not to recognise "this illegal, racist, minority regime"; none
did
1970-80s South Africa, implementing apartheid, created and recognised 4 independent entities
("homelands") - GA resolution rejected independence and declared it invalid
INDEPENDENCE
Independence as a requirement of statehood means, to some extent, factual, as well as legal,
independence from other states. Although it is accepted that states may influence the policies and
conduct of another state, there may come a point, where factual dependence by one state upon
another is so great that it is really no more than a "puppet" state and will not be treated as meeting
the requirement of independence.
SELF-DETERMINATION
Has a long history in international relations as a reason for the cession of territory from one state to
another for the use of plebiscites to establish the wishes of the inhabitants in this connection.
Declaration on the Granting of independence to Colonial territories and People 1960 this resolution
"solemnly proclaims the necessity of bringing to a speedy and unconditional end colonialism in all
its forms and manifestations."
2. All persons have the right to self-determination; by virtue of that right they freely determine their
political status and freely pursue their economic, social and cultural development.
3. Inadequacy of political, economic, social or educational preparedness should never serve as a
pretext for delaying independence.
4. All armed action or repressive measures of all kinds directed against dependent peoples shall cease
in order to enable them to exercise peacefully and freely their right to complete independence, and
the integrity of their national territory shall be respected.
5. Immediate steps shall be taken, in Trust and Non-Self-Governing Territories or all other territories
which have not yet attained independence, to transfer all powers to the peoples of those territories,
without any conditions or reservations, in accordance with their freely expressed will and desire,
without any distinction as to race, creed or colour, in order to enable them to enjoy complete
independence and freedom.
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of the tight of self-determination requires a free and genuine expression of the will of the peoples
concerned.
RELEVANCE OF RECOGNITION
Distinction between recognition of government and recognition of a State
Can confer certain benefits under foreign municipal law - e.g. immunity from suit (in
Australia see Foreign States Immunities Act 1985 (Cth)), diplomatic representatives protected from
action etc
Different levels of recognition exist - de facto and then de jure (according to law)
Territorial claims can also be recognised (e.g. Australia's de jure recognition of
Indonesia's annexation of East Timor)
Even if entities, such as Taiwan, are not States, they still has certain rights/obligations - e.g. Taiwan
has entered treaties
Difficult question as to whether an organisation has legal personality where it has been constituted
by a small number of States - For example, the EU has 15 members; Art 210
Treaty of Rome declares that it has legal personality; Observer status in the GA, participates in
conferences and is party to treaties with non-EU States - however according to Harris, it does not
have international legal personality
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HUMAN BEINGS
Diplomatic protection - allow State to protect, by international claim, its nationals and corporations
injured by the internationally wrongful acts of another State
AMBATIELOS ARBITRATION
Facts: Greece brought claim against UK in relation to a contractual claim against Greek national
who had agreed to buy ships from the UK
Greek national did not call key witness at trial and on appeal leave was not granted to admit the
evidence of the witness; the appeal was discontinued
Held: It was the failure to call the witness at trial that rendered the remedy ineffective - claim
dismissed
Local remedies rule only applies to diplomatic protection.
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What are the sources of international law? That is: how is international law created?
Typically, one would point to Article 38 of the Statute of the International Court of Justice, as
Judge, and current President of the International Court of Justice, Rosalyn Higgins does below.
Article 38(1)(c) -- General Principles- As a Source of I.L "the general principles of law recognized
by civilized nations;"
Article 38(1)(b) -- As subsidiary means: judicial decisions and scholarship- As a Source of I.L
"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. "
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(a) international conventions, whether general or particular, establishing rules expressly recognised
by the contesting states;
(b) international custom, as evidence of a general practice accepted as law;
(c) the general principles of law recognised by civilised [word is a remnant of PCIJ statute, now
redundant] nations;
(d) subject to the provisions of Article 59 [decisions only binding on parties], 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.
This provision shall not prejudice the power of the Court to decide a case ex aequo et bono, if the
parties agree thereon.
- There is no hierarchy of the sources (with the possible exception of (d)) - hierarchy rejected when
original PCIJ statute was drafted
Treaties
- 1648-1919 (231 volumes); League of Nations, 27 years (205 volumes); UNTS (2003 volumes by
1998)
- ILC drafted 2 treaties on treaties: Vienna Convention on the Law of Treaties (VCLT)
and Vienna Convention on the Law of Treaties between States and International
Organizations or between International Organisations (not yet in force)
- "Treaty" define in VCLT as: "an international agreement concluded between States in written form
and governed by international law, whether embodied in a single instrument or in two or more
related instruments whatever its particular designation" (Art 2)
Can also be oral - but not covered by VCLT Process of binding yourself to the treaty is determined
by the parties (usually bilateral only signature; multilateral 2 step process)
- Only parties to a treaty can derive obligations or rights under it: Arts 34-38 VCLT
- The exception is "objective" regimes and border treaties: Aaland Island case (expert commission) -
Finland held bound by a treaty between Russia, Great Britain and France (signed after the Crimean
War) - Russia had agreed to demilitarise Aaland Island in the Baltic; Finland who later acquired
sovereignty held to be bound
- Treaty can affect the development of customary international law
- States can agree to modify customary rule by entering into a treaty - but cannot alter rule of ius
cogens, otherwise is void (Arts 53, 64 VCLT; Art 53 defines as "... a norm accepted and recognised
by the international community of States as a whole as a norm from which no derogation is
permitted")
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Legislative Structures
General Assembly
Art 17 (UN Charter) - approve budget for organisation (majority vote)
Arts 10, 16 - power to discuss and recommend
Art 18 - majority vote
IMF, World Bank, WTO, ILO, WHO - do not operate on 50% + 1 basis, respect wishes of
dissenting States
European Parliament (EU)
International Law Commission (ILC) - created in 1946 (GA) - made up of international experts -
codify and progressively develop international law
International legislation - closest thing is universal/near universal adherence to treaty
Executive
UN SC - 15 States, 5 permanent (US, UK, France, Russia and China) and 10 elected to serve for 2
years (Art 23: regard must be had to equitable geographical distribution)
Art 27 non-procedural votes require majority of 9 and no veto
SC can authorise use of force against States: Chapter VII - power appears to be linked to existence of
a threat to peace, breach of the peace or an act of aggression (Art 39) (although ICJ has ruled that it
has no power to overturn or quash decisions of the SC, although possibly it can review the legality
the decision)
Art 25: members agree to accept and carry out decisions of SC
Art 24(2): SC to act in accordance with purposes and principles of UN
UN Economic and Social Council (ECOSOC)
Examines certain economic, social, cultural, health issues - particularly human rights
Cannot make binding decisions
54 States, elected for 3 years by GA
9 functional commissions (notably, Commission on Human Rights and Commission on
Sustainable Development) and 5 regional commissions
Coordinates activities of UN specialised agencies (WHO, FAO, UNESCO, ILO etc)
Developed consultative arrangements with over 1,600 NGOs
Secretary General and UN Secretariat
SG is "chief administrative officer" (Art 97) - can bring matters to the attention of the SC
(Art 99); secure negotiated solutions to conflict ("good offices" role)
SG appointed for 5 year renewable term on recommendation of SC
Regional Executives
EU Council
European Commission
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Members undertake to comply with decisions to with they are a party: Art 94(1); Also Art 59 Statute
- "[t]he decisions of the Court has no binding force except between the parties and in respect of that
particular case"
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DISARMAMENT
What role does international law play in issues of disarmament? Consider the following video clips
of eminent persons in the field, discussing issues of weapons of mass destruction, and the
international organizations which seek to limit their numbers and use.
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Every person is entitled to certain fundamental rights, simply by the fact of being human. These are
called “human rights” rather than a privilege (which can be taken away at someone’s whim).
They are “rights” because they are things you are allowed to be, to do or to have. These rights are
there for your protection against people who might want to harm or hurt you.
They are also there to help us get along with each other and live in peace.
Many people know something about their rights. Generally they know they have the right to food
and a safe place to stay. They know they have a right to be paid for the work they do. But there are
many other rights.
When human rights are not well known by people, abuses such as discrimination, intolerance,
injustice, oppression and slavery can arise.
Born out of the atrocities and enormous loss of life during World War II, the United
Nations Universal Declaration of Human Rights was signed in 1948 to provide a common
understanding of what everyone’s rights are. It forms the basis for a world built on freedom, justice
and peace.
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7. We’re All Equal before the Law. The law is the same for everyone. It must treat us all
fairly.
8. Your Human Rights Are Protected by Law. We can all ask for the law to help us when
we are not treated fairly.
9. No Unfair Detainment. Nobody has the right to put us in prison without good reason
and keep us there, or to send us away from our country.
10. The Right to Trial. If we are put on trial this should be in public. The people who try us
should not let anyone tell them what to do.
11. We’re Always Innocent Till Proven Guilty. Nobody should be blamed for doing
something until it is proven. When people say we did a bad thing we have the right to show
it is not true.
12. The Right to Privacy. Nobody should try to harm our good name. Nobody has the right
to come into our home, open our letters, or bother us or our family without a good reason.
13. Freedom to Move. We all have the right to go where we want in our own country and
to travel as we wish.
14. The Right to Seek a Safe Place to Live. If we are frightened of being badly treated in
our own country, we all have the right to run away to another country to be safe.
15. Right to a Nationality. We all have the right to belong to a country.
16. Marriage and Family. Every grown-up has the right to marry and have a family if they
want to. Men and women have the same rights when they are married, and when they are
separated.
17. The Right to Your Own Things. Everyone has the right to own things or share them.
Nobody should take our things from us without a good reason.
18. Freedom of Thought. We all have the right to believe in what we want to believe, to
have a religion, or to change it if we want.
19. Freedom of Expression. We all have the right to make up our own minds, to think what
we like, to say what we think, and to share our ideas with other people.
20. The Right to Public Assembly. We all have the right to meet our friends and to work
together in peace to defend our rights. Nobody can make us join a group if we don’t want
to.
21. The Right to Democracy. We all have the right to take part in the government of our
country. Every grown-up should be allowed to choose their own leaders.
22. Social Security. We all have the right to affordable housing, medicine, education, and
childcare, enough money to live on and medical help if we are ill or old.
23. Workers’ Rights. Every grown-up has the right to do a job, to a fair wage for their
work, and to join a trade union.
24. The Right to Play. We all have the right to rest from work and to relax.
25. Food and Shelter for All. We all have the right to a good life. Mothers and children,
people who are old, unemployed or disabled, and all people have the right to be cared for.
26. The Right to Education. Education is a right. Primary school should be free. We should
learn about the United Nations and how to get on with others. Our parents can choose what
we learn.
27. Copyright. Copyright is a special law that protects one’s own artistic creations and
writings; others cannot make copies without permission. We all have the right to our own
way of life and to enjoy the good things that art, science and learning bring.
28. A Fair and Free World. There must be proper order so we can all enjoy rights and
freedoms in our own country and all over the world.
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29. Responsibility. We have a duty to other people, and we should protect their rights and
freedoms.
30. No One Can Take Away Your Human Rights
LAW OF TREATIES
Art. 38(1) (a) ICJ Statute: In deciding disputes regarding international law, the court shall
refer to international covenants [treaties]…
Definition of treaty
Refer Art. 2 of VCLT
“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; “
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In Legal Status of Eastern Greenland case, Norway made unilateral statement that it won’t
create difficulties in respect of Danish‟s claim over Eastern Greenland. ICJ held that
Norway is bound by this unilateral statement.
APPLICATION OF A TREATY
A) Upon its Parties
Art 26 VCLT: every treaty in force is binding upon its parties and must be performed in
good faith
Art 27 VCLT: a party may not invoke the provision of internal law as justification for its
failure to perform a treaty
B) Successive Treaties on the same subject matter
Art 30 VLCT: If there are 2 same treaties concluded on the same matter, the one concluded
later will prevail.
However, if the provision of an ordinary treaty is in conflict with UN Charter, Art 30
VCLT & Art 103 UN Charter provides that UN Charter prevails.
C) Application of a Treaty upon 3rd States
Art 34 VCLT: 3rd party states are not bound by the Treaty without its consent.
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However, Art 35-38 VCLT states that there are exceptions where 3rd party states may be
bound.
INVALIDATION OF TREATIES
There are several grounds which a Treaty may be invalid:
(The person who ratified the Treaty was not capable of doing it.)
1. The violation was manifest and other party must be aware of it
2. The violation concerned a rule of fundamental importance
TERMINATION OF TREATY
~refer to Art 54-60 VCLT
illegality was prima facie the violation of a treaty obligation. Moreover, the Covenant was a
legal instrument with a special character: it was concerned with the machinery of and
procedures for peaceful settlement of disputes.
Use of Force
General Treaty for the Renunciation of War 1928
Art1 parties condemn recourse to war for the solution of international controversies, and
renounce it as an instrument of national policy in their relations with one another.
Art 2 settlement or solution of all disputes of any nature or of any origin, which may arise,
shall never be sought except by pacific means.
UN Charter
Art 2(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 purpose of the UN.
Although "members" - customary rule applying to all states Nicaragua (Merits) case (ICJ,
1986)
Prohibits armed force, not political pressure
Assisting, with supply of arms and training is direct violation of CIL, but funding is not.
Intervention
Declaration on the Inadmissibility of Intervention in the Domestic Affairs of States and the
Protection of their Independence and Sovereignty 1965
No state has a right to intervene directly or indirectly, in the internal or external affairs of
any other state. Art 1
No State may use or encourage the use of economic, political or any other type of measures
to coerce another state. Art 2
The use of force to deprive national identity is a violation of inalienable rights and of the
principle of non-intervention. Art 3
Every state has an inalienable right to choose its political, economic and cultural systems
without interference. Art 5
RIGHT TO SELF-DEFENCE
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could not be waited for there could be no attempt at discrimination between the innocent
and guilty it would not have been enough to seize and detain the vessel but there was
necessity, present and inevitable, for attacking in the darkness of the night.
Proportionality:
Legitimate defence implies the adoption of measures proportionate to the seriousness of the
attack and justified by the seriousness of the danger - League of Nations 1927
Art 51 UN Charter - right to self-defence
Armed Attack
Not every such use of force is "armed force" and does not include "assistance to rebels in
the form of provision of weapons or logistical or other support" - Nicaragua (Merits)
Case
Collective self-defence
Before collective self-defence is allowed, one State must declare itself a victim of an armed
attack and ask for assistance from another State, but the second state does not need a threat
to its national security for it to act - Nicaragua (Merits) Case
Security Council
Self-defence is temporary - until the Security Council acts.
Security Council
Under chapter 7 of the UN Charter - actual threat
SC may act for maintaining international peace and security Art 34
Recommends appropriate procedures or methods Art 36 in Art 33
Make own recommendations for the settlement of disputes in accordance with Arts 37 ,
38
use of Art 43 forces
measures not involving the use of force Art 41
provisional measures
measure to maintain/restore peace and security (no IL breach needed)
General Assembly
Secondary responsibility of peace and security
Regional organisations (eg NATO)
Peace keeping forces
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PART IV
HOT POINTS
(MCQS CAPSULE 2000-16)
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the relations of individuals with each principles and rules that may not be
other and with government. altered or broken. Such principles
National liberation movements: The currently include the prohibitions against
Palestine Liberation Organisation and slavery and torture, genocide, the use of
Polisario (representing the people of armed force, and piracy on the high seas;
Western Sahara, occupied by Morocco) and more positively, the principle of
are examples of organisations having a racial non-discrimination; and, the right
limited international personality through to self-determination. These principles of
recognition by some States, or the United international law are known as jus
Nations, as representatives of their cogens. In Latin this means ‘compelling
peoples. law’ and refers to so-called ‘peremptory
The International court of justice was norms’ of general international law. In
established: 1945 time, new principles may become part of
A state has the right to use force in case of: the jus cogens. Not every principle of
Armed attack international law has the status of jus
A treaty is a written legal document cogens.
(instrument) agreed between states and ILO (International Labour
governed by international law. It may be Organisation) formulates policies and
in the form of a single instrument, or two programs to improve working conditions
or more related instruments. Although and employment opportunities, and sets
often used interchangeably, the term labour standards used by countries
‘convention’ is usually reserved for around the world.
multilateral agreements, such as the FAO (Food and Agriculture
hague, geneva and Vienna conventions. Organisation) works to improve
Treaties can also be called agreements, agricultural productivity and food
protocols or instruments. security, and to improve living standards
The Vienna Convention on the Law of of rural populations.
Treaties came into force on 27 January UNESCO (UN Educational, Scientifc
1980. and Cultural Organisation) promotes
Entry into force – the terms of a treaty education for all, cultural development,
will usually specify how and when it protection of the world’s natural and
comes into force. Many multilateral cultural heritage, international
treaties require that a specified number of cooperation in science, press freedom and
States consent to be bound before the communication.
treaty can enter into force. An example is WHO (World Health Organisation)
the 1982 UN Law of the Sea Convention, coordinates programs aimed at solving
which required 60 ratifications before it health problems and the attainment by all
came into force in 1994. people of the highest possible level of
Treaties are binding – the principle of health. It works in areas such as
pacta sunt servanda (from Latin, meaning immunisation, health education and the
‘agreements are to be kept’ or ‘treaties are provision of essential drugs.
binding’). World Bank group – Provides loans and
Jus cogens: There are some principles of technical assistance to developing
international law, however, that have countries to reduce poverty and advance
become so widely accepted that they are sustainable economic growth.
now considered to be fundamental
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Convention on the Law of the Sea 1982 The headquarters of The United Nations is
(UNCLOS), which entered into force in located at: New York
1994. The permanent Court of International
Justice has its headquarter at: The Hague
‘Prorogue’ means to terminate a session
The headquarters of ICAO are located at:
of parliament, which places it in recess Montreal
and causes all unfinished business before An agreement between a State and a
it to lapse. It differs from dissolving a multinational corporation: Not a treaty
parliament in that a prorogued parliament A member of the International Law
may be called back. Commission is: Elected by the general
Foreign warships have: The right of assembly
The term of a member of the International
innocent passage in the Territorial waters.
Law Commission is: 5 Years
A state has the right to exploit in the A candidate for the International court of
continental shelf: Both Living and non- justice is nominated by: The National
Living resources Government.
The principle of rebus sic stantibus means: A Judge of the ICJ is elected by:
Fundamental change of circumstances Both the general assembly and the Security
council
A diplomatic agent is immuned from local
The Security council consists of:
jurisdiction: in all cases. 15 members
The doctrine, which accepted the "Law of An ad-hoc judge of the ICJ is: Appointed by
Nature" as an independent source of rules of the State
the law of nations, was propounded by: Tobar doctrine is related to: The recognition
Grotius of a Government
The Vienna convention of consular relations
The permanent court of arbitration was
was adopted in: 1961
established by: The Hague Conferences of The territorial waters of State may extend
1899 and 1907 up to: 200 miles
"International Law is not true Law but A land-locked State: cannot fly its own flag
positive international morality only". Who The definition of aggression was adopted in:
said it? Austin 1974
"Treates are the supreme law of the land". The baseline is line from which the limits of:
Maritime zones are measured
Where is it laid down? Statute of the ICJ
The theory of absolute territorial
When was Monroe Doctrine originally sovereignty: Advocates for exclusive right of
announced? 1823 the territorial State over water resources of
A Vasal State is: One which is completely an international river.
under the suzerainty of another State The doctrine of “inter-temporal law" means
A Condominium is: A particular territory that the principle of natural justice takes
over which joint dominion is exercised by precedence over other rules.
The Eastern Greenland case rose between:
two or more external powers. Norway and Denmark
ANZUS stands for: Association for security WIPO: World Intellectual Property
purpose of Australia, New Zealand and the Organization
United States. ICAO: International Civil Aviation
IAEA is used for: International Atomic Organization
energy Agency IBRD: International Bank of
What is Contraband? Goods which may Reconstruction for Development
Provisions of Municipal Law are
assist an enemy in the conduct of war.
enforceable in international -relations if they
The principle of exhaustion of local are not in conflict with international law.
remedies is related to: State responsibility
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International Law Notes by Aamir Mahar
Foreign diplomatic envoys enjoy absolute The General Assembly is: The Principle
immunity from local jurisdiction in; both Organ of UNO
civil and criminal matters. League of Nations was not joined by:
The Right of innocent passage is available USA
to: Foreign ships. Judges of the ICJ are: Elected by the
Non-permanent members of the U.N. General Assembly and the Security Council
Security Council are elected for a period’ Under the Convention of the Law of the
of: two years. Sea, the breadth of the Territorial Sea is: 12
A successor state is legally bound to: nautical miles
only selected obligations. A state can use force: In its own defence
A lower riparian state: Has right to share Diplomatic relations are established by:
water on an equitable basis. Mutual agreement
The Charter of the U.N. was drawn up by: Rights of hand-locked states are governed
San Francisco Conference 1945. by Convention on the Law of Sea
Universal Declaration on Human Rights Vienna Congress took place in: 1815
was adopted in: 1948 Universal Declaration of Human Rights was
The judges of the I.C.J. are elected by: signed in: 1948
the U.N. Security Council & the U.N. The United Nation is: A creation of
General Assembly Member States
Territorial Waters are: Waters within the Territorial asylum is: An exercise of
territorial limits of a state. territorial sovereignty
A state is admitted to the membership of A state is not bound to do so
the’ U.N. by: the General Assembly Minquires and Ecrehos case was decided by
Advisory opinion from the I.C.J. can be ICJ (1950)
sought by: the U.N. & the States The eruption of war termination: Only
A state is exempted from the jurisdiction of political treaties
the local courts in another state: by virtue of International Law can: provide moral
its sovereign status support to an issue in dispute
The offence of piracy is subject to the The concept of State immunity is: An
jurisdiction of: all the states. attitude of territorial sovereignty
A Continental Shelf is situated beneath the The Continuity of states us International
sea level at the approximate depth of: 200 Legal Persons is: Not affected by change of
meters government
Foreign sovereign ships sailing/anchoring Harmon Doctrine is: was renounced before
in the coastal waters of another state it could take roots in International Law
are: subject to the law of both states. Vital change of circumstances renders a
In case an alien is injured in a foreign state, treaty invalid
it is the right of the: state of the nationality In Pakistan the limit of the territorial waters
of the injured alien. is: 12
Extradition is the process of: handing over a A diplomatic agent is immune from local
person accused or convict of a crime by a jurisdiction: In all cases
state to the demanding state. Contiguous Zone in Pakistan is adjacent to
The Economic and Social Council is: an and beyond the territorial waters and
organ of the U.N. extending seawards to a time 24.
Subject of International Law are: States & The width of the partition belt is generally
Individuals recognized to be 3 miles
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International Law Notes by Aamir Mahar
The Estrada Doctrine relates to: According to the “Floating island Theory”,
Recognition of a government a floating island is: A ship bearing the
The term of judges of the International national flag of a State
Court of Justice is: 9 years In procedural matters the decisions of the
Extradition is normally granted: In criminal Security Council are made by an affirmative
cases votes of any: 9 members
Foreign ships have the right of innocent Extradition is normally granted: In criminal
passage in the Territorial Waters cases
A State has the right to use force for Armed What is Contrabands? Goods which may
attack assist an enemy in the conduct of war
International Court of Justice was Diplomatic Asylum means: Asylum
established in: 1945 provided by a diplomatic mission
The Vienna Convention on Diplomatic The International Law Commission is a
Relations was adopted in: 1961 body to Codify International Law
A State has complete immunity from the The width of the maritime belt is generally
jurisdiction of foreign courts in: All cases recognize to be 3 miles
International Law Commission is a body to: The term of judges of International Court of
Codify International Law Justice is nine years
The first case taken up by the International Tobar Doctrine is related to the recognition
Court of Justice was: Corfu Channel of a government
A state can nationalize foreign property Conference of Bogota was held in 1948.
after paying compensation Vienna Conference of 1961 is related to:
Diplomatic Asylum means Asylum Diplomatic inter course and immunities
provided by a diplomatic mission Who is called ‘the father of International
Minister Resident are lower in rank than Law’? Hago Grotius
that of the Minister Plenipotentiary A landlocked state is: Surrounded by land
A State has the right to exploit in the from all sides
Continental Shelf: Both living and non- The Alabama Claims Arbitration case was
living resources decided in 1872.
The principle of rebus sie steatibus means The Convention for the protection of the
Fundamental change of circumstances Ozone Layer was done on March 22, 1985
The Schooner Exchange case dealt with the Culvo Clause means: A state can intervene
principle of a State’s Courts have to accept on behalf of its nationals.
the validity of a foreign State’s acts. Diplomatic relations are established by
Hague Convention of 1970 dealt in properly Mutual consent
with the crimes relating to: Hijacking Eruption of war terminates: Only political
De facto Recognition is Circumstantial treaties
Recognition Foreign ships sailing and anchoring in the
The limit of the Territorial Waters of coastal waters of another state are: Subject
Pakistan is: 12 nautical miles to the law of both the States
Continental Shelf of Pakistan may extend Piracy is an offense within the jurisdiction
upto a distance of 200 nautical miles of the: All the States
Exclusive Economic Zone of Pakistan is an Territorial Waters are waters Adjacent to
area beyond and adjacent to the territorial the contiguous Zone
waters the limit of which is 200 nautical Non-Permanent members of the Security
miles Council are elected for a period of 2 years
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International Law Notes by Aamir Mahar
The Montreal Convention for the safety of exert a strong moral influence in the
Civil Aviation was signed in 1971 settlement of the conflict.
Diplomatic staff enjoys complete immunity Embargo- detention by the state seeking
from: Civil Jurisdiction & Criminal redress of the vessels of the offending
Jurisdiction state or its nationals, whether such vessels
Number of Judges of International Court of are formed in the territory of the former or
Justice is: Fifteen the high seas.
Permanent Court of International Justice UNITING FOR PEACE RESOLUTION
was established under League of Nations (1950)- it provides that if the Security
Pacta Sunt Servanda means: Treaties Council, because of lack of unanimity of the
between states are to be respected permanent members, fails to exercise its
Headquarters of International Court of primary responsibility for the maintenance
Justice is in Hague of peace and security in any case where
Principles Jes Soli means: Grant of there appears to be threat to the peace,
nationality on the basis of place birth breach of peace, or act of aggression, the
Much of international law is derived General Assembly shall consider the
through analogy from Roman law matter immediately.
Vienna Convention on Law of Treaties was Principal of “double criminality” means that
signed in 1969. the offence for which a person is extradited
Truce mean: A temporary arrangement must be an offence in both the states.
between the belligerent parties for cessation One of the modes of acquiring state territory
of hostilities is: occupation.
Declaration is a treaty between the The name of the present secretary general of
contracting parties which is not needed to the UN is: Ban ke Mon
be ratified. The term Men of War signifies:A warship
Kellog Briand Pact or Paris Peace Treaty Albama claim arbritation determines the
was signed in 1928. principles of: Neutrality
Recognition of new States is a matter of Decision of arbritation is: Binding on parties
Policy of the State Indo-Pakistan conflict in 1965 was a: War
To get asylum in a foreign state by an Nationality of a women as a result of
individual is his basic right marriage with a foreigner is changed
Diplomatic envoys in the receiving state are Tashkent declaration between india and
given immunity from both criminal and civil Pakistan in 1966 by USSR was a: Mediation
jurisdiction Geneva convention for POWs was signed
Territorial sea of a State is under its total in: 1949 (Also called 3rd Geneva)
control Armed attack on enemy fall under:
Bynkershock principle is related to: Intervention
Measurement of maritime belt. Briand-Kellog pact was signed in Paris in:
Inquiry – an investigation of the points 1928 (27 August 1928)
in question, on the theory that their Universal declaration of Human rights was
elucidation will contribute to the solution passed by:UN General Assembly in 1948
of the differences between the parties. Concept of state will was first time given by:
The findings of the party making the Hegel
inquiry are not conclusive upon the Primary responsibility for Human Rights
disputing states but they nevertheless may question is given by the UN Charter to:
ECOSOC
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International Law Notes by Aamir Mahar
PART V
Detailed Notes
(Important Topics)
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International Law Notes by Aamir Mahar
On February 26, 2001, the Treaty of Nice was signed; it was entered into force on February 1,
2003. The Treaty of Nice was concluded to amend the Treaty on the European Union, the Treaty
Establishing the European Community, and certain related acts. It dealt mostly with reforming the
EU institutions so that the Union could function efficiently after its enlargement to 25 Member
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International Law Notes by Aamir Mahar
States. The Treaty of Nice and the former Treaties of the EU have been merged into one
consolidated version.
II. STATUS AND MEMBERSHIP OF THE EU
The EU is an international regional organization within the framework of Chapter VIII of the
Charter of the United Nations. It is an organization of European countries dedicated to increasing
economic integration and strengthening cooperation among its members. Nevertheless, it is a
unique organization; it is not a federation like the United States, nor is it simply an organization for
cooperation between governments, like the United Nations. The countries that make up the EU
remain independent sovereign nations but they pool their sovereignty in order to gain a strength and
world influence none of them could have on their own. Pooling sovereignty means, in practice, that
the member states delegate some of their decision-making powers to shared institutions they have
created, so that decisions on specific matters of joint interest can be made at European level.
The European Union headquarters is located in Brussels, Belgium. Today the Union embraces
27 Member States. Between January 1995 and May 2004, the Union composed of 15 members. The
15 Member States of the Union were: Austria, Belgium, Denmark, Finland, France, Germany,
Greece, Ireland, Italy, Luxembourg, Netherlands, Portugal, Spain, Sweden, and the United
Kingdom.
In May 2004, ten new members joined the Union, bringing its members to 25; these states were
eight countries of central and eastern Europe, namely the Czech Republic, Estonia, Latvia,
Lithuania, Hungary, Poland, Slovenia and Slovakia, and two other countries, namely Cyprus and
Malta. In January 2007, two new members, namely Bulgaria and Romania joined the Union,
bringing the members to 27.
1) European Commission
The European Commission is the highest administrative body of the Union. It is independent of
national governments. Its job is to represent and uphold the interests of the EU as a whole. It
consists of 27 members (commissioners) who are appointed by the Council, acting by qualified
majority, for a period of five years, renewable. The Council acts on the common accord of the
member governments (each Member State has to nominate one commissioner) based on the grounds
of their (commissioners) general competence and whose independence is beyond any doubt. The
appointed members must be approved by the European Parliament; one of them will be the
President of the Commission. The members of the Commission must, in the interest of the Union,
be completely independent in the performance of their duties, and must not seek or take instructions
from any government or from any other body.
The Commission is EU executive arm. It is responsible for managing the day-to-day business of
the European Union: (a) proposing legislation to Parliament and the Council; (b) implementing its
policies and running its programmes; (c) managing its budget; (d) enforcing its law; and (e)
representing it on the international stage, for example by negotiating agreements between the EU
and other countries.
The Commission works under the political guidance of its President. It meets regularly, and acts
by the majority of its members. It is politically accountable to Parliament, which has the power to
dismiss the whole Commission by adopting a motion of censure. Individual members of the
Commission must resign if asked to do so by the President, provided the other commissioners
approve.
The Commission attends all the sessions of Parliament, where it must clarify and justify its
policies. It also replies regularly to written and oral questions posed by members of the Parliament.
The day-to-day running of the Commission is done by its administrative officials, experts,
translators, interpreters and secretarial staff. The ‘seat’ of the Commission is in Brussels (Belgium),
but it also has offices in Luxembourg, representations in all EU countries and delegations in many
capital cities around the world.
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The primary responsibility of the Council is to ensure the attainment of the objectives of the
Union through decisions and coordination of the general policies of the Member states. In this
regard it has been entrusted with the following six key responsibilities:
1. To pass European laws, jointly with the European Parliament in many policy areas.
2. To co-ordinate the broad economic policies of the member states.
3. To conclude international agreements between the EU and other countries or international
organizations.
4. To approve the EU budget, jointly with the European Parliament.
5. To develop the EU Common Foreign and Security Policy (CFSP) based on guidelines set by
the European Council.
6. To co-ordinate co-operation between the national courts and police forces in criminal matters.
The E.P holds an annual session on the second Tuesday in March, and may meet in
extraordinary session at the request of a majority of its members or the request of the Council or the
Commission. It elects its President and its officers from among its members. It acts by an absolute
majority, save as otherwise provided in the Treaty on the Union.
The European Parliament has three places of work: Brussels (Belgium), Luxembourg and
Strasbourg (France). Luxembourg is home to the administrative offices (the General
Secretariat). Meetings of the whole Parliament, known as “plenary sessions”, take place in
Strasbourg and sometimes in Brussels. Committee meetings are also held in Brussels.
The EP was originally designed merely as an advisory body; however, its right to participate in
EU decision making process was granted to it by later treaties. Nowadays, the EP has the following
responsibilities:
1. Passing European laws, jointly with the Council in many policy areas.
2. Exercising democratic supervision over the other EU institutions, and in particular the
Commission. It discusses the annual general report submitted to it by the Commission. It has the
power to approve or reject the nomination of commissioners, and the right to censure the
Commission as a whole or any of its members.
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3. Influencing the EU budget. Parliament shares with the Council authority over the EU budget
and can therefore influence EU spending. At the end of the procedure, it adopts or rejects the
budget in its entirety.
4. Vetoing the accession of a new member to the Union.
Notably, the influence of the E.P is essentially negative. It can block but rarely initiate
legislation. Its consultative opinions can be ignored. It has no power over the Council of the EU.
The ECB works in complete independence. Neither the ECB, the national central banks of the
Eurosystem, nor any member of their decision-making bodies can ask for or accept instructions from
any other body. The EU institutions and member state governments must respect this principle and
must not seek to influence the ECB or the national central banks.
In conclusion, it is not an exaggeration to say that the EU has become a fact of life on the
international stage. It has succeeded in occupying an essential and central place in Europe and in
the World.
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International Law Notes by Aamir Mahar
Basically, there are two theories as to the nature, functions and effects of recognition, the
constitutive theory and the declaratory theory. The constitutive theory considers that the act of
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International Law Notes by Aamir Mahar
recognition by other States creates a new State and grants it the international legal personality. This
implies that the new State is established as an international person by virtue of the will and consent
of already existing States. In case of a new government, it is the recognition that grants it the status
at the international level.
The Constitutive theory is opposed by the declaratory theory. According to the declaratory
theory, recognition has no legal effects; statehood or the status of a new government exists as such
prior to and independently of recognition. The existence of a State or a new government is a
question of pure fact. The act of recognition is merely a formal acknowledgement of established
facts. When an entity satisfies the requirements of a State objectively, it is a State with all
international rights and duties, and other States must treat it as such.
Historically, the constitutive theory has its merits. During the Nineteenth Century, International
Law was regarded as applying mainly between States with European civilization. Other countries
were admitted as States to this community only if they were recognized by those member States.
Even today, recognition can sometimes have a constitutive effect, although State practice is not
always consistent. When the establishment of a new State or government is in violation of
International Law, this State or government is often regarded as having no legal existence until it is
recognized.
However, the prevailing view today is that recognition is declaratory and does not create a State.
This view was laid down in the Montevideo Convention on the Rights and Duties of States of
1933. Article 3 of this Convention provides that “The political existence of the state is independent
of recognition by the other states. Even before recognition the state has the right to defend its
integrity and independence”.
Actually, the two theories are of little assistance in explaining recognition or determining the
status of non-recognized entities in practice. In addition, the practical differences between these two
theories are not significant. Under the declaratory theory, the decision whether an entity satisfies the
criteria of statehood is left to other States, and the granting formal recognition to another State,
which is a unilateral act, is left to the political discretion of States. On the other hand, the
significance of the constitutive theory has diminished because of the obligation imposed on States to
treat an entity that satisfies the criteria of statehood as a state. Moreover, the States practice
regarding recognition shows that States follow a middle position between these two theories.
duties of a State under International Law. Recognition of a new State automatically involves
recognition of its government, although the latter may be recognized only de facto.
Recognition of a new government is quite different from the recognition of a new State, although
in principle most of the considerations whether legal or political apply equally to both types of
recognition. As far as a State is concerned, the satisfaction of basic requirements of statehood is
examined by the recognizing State before granting its recognition to the new State. Recognition of a
new government requires its satisfaction of certain conditions such as effectiveness and
independence. Notably, the existence of an effective and independent government is the essence of
statehood. By recognizing a government, the recognizing State accepts to deal with this government
as the governing authority of the State and grant it the legal consequences of such status in terms of
privileges and immunities within its domestic legal system. In both these types of recognition, we
should not forget the great role played by political considerations in the decision whether or not to
grant recognition.
The granting or refusal of recognition of a government has no effect on the recognition of a State
itself. Recognition of a State affects its legal personality, whether creating or acknowledging it,
while recognition of a government affects its status as the governing authority, not the State. A
subsequent government may not be recognized, even though the recognition of a State is permanent
as regard to its existence and its status as a legal person under International Law. If the government
of a State is changed in accordance to constitutional processes, no problem of recognition arises as
long as the new government is firmly in power and secures stability in the country. In this case,
recognition by other States is purely a matter of formality. The problem of recognition of a new
government arises in cases when changes occur as a result of an unconstitutional practice or a
revolution. The recognition of the revolutionary government is a serious problem and the decision
thereon is made with great care. On this matter, no definite legal principles are established and the
practice of States is inconsistent and confused. However, certain rules have been recognized to
cover recognition of illegal changes in government. Such rules imply the acceptance of the realities
of the transfer of power and suggest that once a new government effectively controls the country and
that this seemed likely to continue, recognition should not be withheld.
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Recognition of belligerency was accorded during most of civil wars of the Nineteenth Century,
such as the revolts of the Spanish-American colonies and the American Civil War, and during most
of the wars of independence of the Twentieth Century.
To grant recognition of belligerency, the recognizing State is always dictated by the primary
motive, which is to protect and promote its national interests. The recognizing State may intend
either to get the status of neutrality between the belligerent parties or to support the legitimacy of the
insurrection.
During the Spanish Civil War (1936-1939), United Kingdom granted recognition to the two rival
parties, de jure recognition to the Republican government and de facto recognition to General
Franco’s government that gradually took over the country and its recognition turned into de jure.
During 1988-1991, most States recognized the two rival governments in Lebanon de facto until the
ending of the insurrection led by General Aoun, and then the government of Salim Al Huss was
accorded de jure recognition.
When recognition is granted by an express statement, it should always be regarded as de
jure recognition, unless the recognizing State provides otherwise. When recognition is implied, there
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International Law Notes by Aamir Mahar
will often be uncertainty as to the intention of the recognizing State whether granting de jure or de
facto recognition.
Choosing the type of recognition to be granted, the recognizing State is occupied mostly with
political realities and considerations as well as own national interests, and to a lesser degree with
legal considerations. A statement that a government is recognized as de factomay, on one hand,
involve a purely political judgment, involving either a reluctant or cautious acceptance of an
effective government, lawfully established according to International Law, or an unwarranted
acceptance of it as a de jure government. It may, on the other hand, be intended to be or to include a
legal determination of the existence of an effective government, but with reservations as to its
viability and permanence. It may, of course, happen that the legal and political considerations for
caution coincide. The distinction between these two types of recognition is insubstantial, since it is a
question of intention, not of a legal matter. However, it is considered that de jure recognition is
irrevocable while de facto recognition can be withdrawn. Actually, in the political sense recognition
of either type can always be withdrawn, while in the legal sense it cannot be unless a change of
circumstances warrants such withdrawal.
Whatever the basis for the distinction between de jure and de facto recognition, the effects of the
two types are mostly the same. Nevertheless, there are certain important differences between these
two types, which are:
(a) Only the de jure recognized State or government can claim to receive property locally situated
in the territory of the recognizing State.
(b) Only the de jure recognized State or government can represent the old State for the purposes
of State succession or with regard of espousing any claim of its national for injury done by the
recognizing State in breach of International Law.
(c) The representatives of the de facto recognized state or government may not be entitled to full
diplomatic immunities and privileges.
other governments is to break diplomatic relations, since this method does not entail the legal
consequences and the problems that the withdrawal of recognition would produce.
level. If an entity is recognized as a State, it will be entitled to rights and subjected to duties that
would not be relevant otherwise, and it will enjoy privileges and immunities of a foreign State before
the national courts of other States, which would not be allowed to other entities.
What are the effects of recognition? Are there effects for non-recognition? The Answers to these
two questions are dealt with in the following sub-sections.
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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 teaching 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.
This Article lists the traditional sources of Public International Law, the actual legal materials
that the ICJ has to apply to international disputes. According to this Article, these sources are of
two types: the primary sources that are represented by the international conventions, international
custom and general principles of law; and the subsidiary sources that are represented by the
decisions of courts and the opinions of legal scholars. Moreover, this Article lists
“ex aequo et bono” (equity) as an alternative source of Public International Law applied by the Court
if the parties agree thereto. However, in addition to these traditional sources, there are
contemporary sources, such as the acts of the international organizations.
Thus, the sources of the contemporary Public International Law can be classified into seven:
1- International customs;
2- Treaties;
3- General principles of law;
4- Judicial decisions;
5- Opinions of legal scholars;
6- Ex aequo et bono (Equity);
7- Acts of international organizations.
1. International Customs
Article 38 of the Statute of the ICJ refers to an international custom as evidence of a general
practice accepted as law. This definition comprises of two elements: a general practice and its
acceptance as law. These two elements are necessary for the formation of customary international
law. The first element, the behavioral or objective element, requires a recurring consistent action or
lack of action by States, which is indicated by such activities as official statements or conducts,
legislative or administrative action, court decisions and diplomatic behaviors or correspondence.
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The second element (the psychological or subjective element) entails the conviction that in similar
case such a practice is required or permitted by international law. In this sense, international
customs may be defined as practices or usages which have been observed by a large number of States
over a lengthy period of time and considered by them to be legally obligatory, i.e., being a law.
Notably, the terms “custom” and “usage” are often used interchangeably. Strictly speaking, there
is a clear technical distinction between the two. Usage is an international habit of action that has not
received full attestation and does not reflect a legal obligation; an example of a usage is the salute at
sea. Usages may be conflicting; custom must be unified and consistent. A usage to become a
customary rule of law, it must fulfill two conditions: acceptance or recognition by a large number of
States and repetition over a lengthy period of time. A custom has a definite obligation attached to
it. Failure to follow custom results in State responsibility, and consequently entails the possibility of
punishment (sanction) or of retaliation against that State.
International custom, as Article 38 indicates, is one of the primary sources of International Law
which the ICJ shall apply. In fact, international customs constituted the bulk of the rules of
International Law. Historically, custom had played a great role in the formation of the rules of
International Law. However, since the beginning of the Twentieth Century, this role has been
decreased in favor of the law-making treaties.
2. Treaties
The term “treaty” is used as a generic term embracing all kinds of international agreements which
are known by a variety of different names such as, conventions, pacts, general acts, charters,
statutes, declarations, covenants, protocol, as well as, the name agreements itself. A treaty may be
defined as an international agreement concluded between States in written form and governed by
International Law.
Article 38 of the Statute of ICJ indicates that international conventions (treaties), whether general
or particular, establishing rules expressly recognized by the contesting states should be applied by the
Court to the disputes submitted to it. Although this Article divided treaties into two kinds, general
treaties and particular treaties; it is only the first kind, the general treaties or the so called the law-
making treaties, which intended to have a universal and general application, constitute a primary
source of International Law.
The particular treaties or the so called treaty-contracts are not directly a source of International
Law since their application is limited only to the contracting parties which are two or small number
of States, and they deal with limited affairs . This kind of treaties does not create new rules of
Public International Law, but at best, only new rules of particular or regional application. However,
as a substantial number of States accept and recognize such new rules formulated in this kind of
treaties as obligatory, these rules will become part of the Public International Law. Examples of
such treaties are bilateral treaties on commercial, and friendship relations.
The law-making treaties constitute a primary source of International Law. Since the middle of the
Nineteenth Century, there has been an astonishing development of law-making treaties. The rapid
expansion of this kind of treaties has been due to the inadequacy of customs in meeting the urgent
demands arose from the changes which have been transforming the whole structure of international
life. Law-making treaties have been concluded to regulate almost every aspect concerning the
international community. Examples of important treaties are: the Charter of the United Nations,
the four Geneva Conventions of 1949, the Vienna Convention on Diplomatic Relations of 1961, the
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International Covenant on Civil and Political Rights of 1966 and the Convention on the Law of the
Sea of 1982.
In contrast with the process of creating law through custom, treaties are a more modern, more
deliberate and speedy method. They are of growing importance in International Law. Their role in
the formation of new rules of International Law increases day after day. Today, the law-making
treaties are considered the most important primary source of Public International Law.
4. Judicial Decisions
Article 38 of the Statute of the ICJ directs the Court to apply judicial decisions as subsidiary
means for the determination of rules of law. This direction is made subject to the provisions of
Article 59, which states that “the decision of the Court has no binding force except between the
parties and in respect of that particular case.” The provision of Article 59 of the Statute of the ICJ is
understood to mean that the Court is not obliged to follow previous decisions. So while, as Article
59 ascertained, the doctrine of precedent as it is known in the Common Law, whereby the decisions
of certain courts must be followed by other courts, does not exist in International Law, it is still that
the decisions of the international courts (PCIJ and ICJ) are quoted as authoritative decisions, and
international courts have always strived to follow their previous decisions to insert certainty and
uniformity within their judicial process, or at least, they have had to take previous decisions into
account.
The judge of the ICJ sometimes does a little more than merely determine a law; he may establish
a law. This has occurred in many instances: the Anglo-Norwegian Fisheries case of 1951, which stated
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the criteria for the recognition of baseline from which to measure the territorial sea; and
the Reparations case of 1949, which established the legal personality of international organizations.
The PCIJ, during its existence, gave a large number of decisions and advisory opinions on
matters of international concern, thereby developing International Law. The ICJ, the successor of
the PCIJ, has been doing the same.
As the term “judicial decisions” referred to by Article 38 also encompasses decisions (awards) of
international arbitral courts (tribunals) and the decisions of national courts, these decisions have
been playing a role in the development of International Law.
There have been many international arbitral tribunals, such as the Permanent Court of
Arbitration and the various mixed-claimed tribunals, including the British-American Mixed Claims
Tribunal and the Iran-US claims Tribunal. Although these tribunals differ from the international
courts in some ways, many of their decisions have been extremely significant in the development of
International Law.
The decisions of national courts of various nations have played a role the development of
International Law, particularly the international customary law. These Decisions help to form
international customs. They show what the national courts have accepted as international law and
how the International Law, in the given case, is understood in that country. Examples of such rules
of law developed by, or derived from the uniform decisions of national courts are certain rules of
extradition law, the rules related to State recognition, and the rules of diplomatic immunity.
One may finally say that judicial decisions, whether international or national, have played an
important part in the development of International Law. The international customary law has
largely developed from case to case, and a large number of cases have been submitted to
international as well as national courts of various nations.
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of the Court to avoid a somewhat undesirable selection of citations. However, many references to
writers are found in the pleadings before the Court.
decisions are regarded as a source of the International Law. The only clear example of binding
decisions is the resolutions which the Security Council of the United Nations are authorized to take
under Chapter Seven (VII) of the Charter of the United Nations dealing with actions related to
threats to the peace, breaches of the peace, and acts of aggression.
However, there is a controversy concerns the non-binding decisions of the organs of the
international organizations. Since almost all the organs of the international organizations are
composed of representatives of member states and their acts are merely the acts of the states
represented in these organs, they would probably constitute an evidence of customary law because
they reflect the views of the state voting for them.
The obvious examples of such type of acts are the resolutions and declarations of the General
Assembly of the United Nations. When the vast majority of States, in the General Assembly,
consistently vote for resolutions and declarations on a certain topic, a State practice will be
established and a binding rule of customary International Law will emerge. Thus, these resolutions
and declarations will constitute an evidence of the existence of customary International
Law. Examples of such resolutions and declarations regarded as examples of State Practice which
have led to binding rules of customary International Law are: “the Resolution on Prohibition of the
Use of Nuclear Weapons for War Purposes”, “the Declaration on Granting of Independence to
Colonial Countries and Peoples”, “the Declaration on Permanent Sovereignty over Natural
Resources” and “the Declaration of Legal Principles Governing Activities of States in the
Exploration and Use of Outer Space”.
Resolutions and declarations of the General Assembly may also provide a basis for the
progressive development of the International Law and the speedy adaptation of customary law to
the conditions of modern life. Moreover, in some instances, a resolution or declaration may have
direct legal effects as an authoritative interpretation and application of the principles stated in the
Charter of the United Nations.
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In the war between the U.S.S.R. and U.S.A. a major arena was the strategy of technology. This cold
war also involved covert conflict, through acts of espionage. Beyond the actual fighting and killing
that went on through intelligence services, the Cold War was heavily manifest in the concerns about
nuclear weapons and the wars which could be fought with them, as well as in the propaganda wars
between the United States and the USSR. It was far from clear, going through these times, that
global nuclear war would not result from the smaller arenas of conflict, giving each of them an
added degree of concern. These pressures impacted many aspects of life throughout the world, much
more so than the actual fighting going on between intelligence services.
One major hot spot of conflict was Germany, particularly Berlin. Arguably, the most vivid symbol of
the Cold War was the Berlin Wall, isolating West Berlin (the portion controlled by West Germany
and allied with France, England and the United States) from East Germany, which completely
surrounded it. Many East Germans risked death attempting to cross the defenses surrounding the
wall to reach freedom in West Berlin, and many were killed in the attempt. President Ronald
Reagan's challenge "Mr. Gorbachev, tear down this wall!" in 1988 seemed mere grandstanding, yet
the wall was torn down within two years -- not by Premier Gorbachev's order, but by the citizens of
East and West Berlin.
The cold war was waged through attempts to gain influence over intermediary countries, with
popular conception making much of spies and traitors working undercover. The Korean War, the
Vietnam War and the conflicts in Afghanistan, Grenada, Chad, Angola, Cuba and of course the
Middle East were aspects of the Cold War. The war was also fought by intelligence organizations
like the CIA (United States), MI6 (United Kingdom), Mossad (Israel), BND (West Germany),
STASI (East Germany) and the KGB (USSR).
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Corrupt governments and citizens' desire for greater personal freedom and greater individual wealth
were also major factors in the collapse of the Soviet Union and its satellite countries.
Others argue that the Soviet Union's collapse was already inevitable. There is certainly evidence that
the CIA played up Soviet military power through the 1980s.
Gorbachev's policy of Glasnost eliminated the strict censorship practiced for hundreds of years.
Glasnost stands for openness, and Soviet citizens were now allowed to speak openly about their
country's problems. Perestroika, or "restructuring," was Gorbachev's attempt to end the inefficiency
and corruption in government.
The United States and other Western nations decided to form alliances against possible Soviet
attempts to extend their sphere of influence. In April 1949 the United States signed the North
Atlantic Treaty. Members agreed that an attack on one of them would be considered an attack on all
of them. The Soviets later formed an opposing alliance known as The Warsaw Pact. Because of the
arms race many countries in the world now own nuclear weapons.
1940s
1945: February 4-11-- Yalta Conference Cold War Begins
1945: August 6 -- United States first used atomic bomb in war (A bomb was dropped on Hiroshima
+ Nagasaki)
1945: August 8 -- Russia enters war against Japan
1945: August 14 -- Japanese surrender End of World War II
1946: March -- Winston Churchill delivers "Iron Curtain" Speech
1947: March -- Truman declares active role in Greek Civil War
1947: June -- Marshall Plan is announced
1948: February -- Communist takeover in Czechoslovakia
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1950s
1950: February -- Joe McCarthy begins Communist witch hunt
1950: June -- Korean War begin
1951: January 12 -- Federal Civil Defense Administration established
1953: June 19 -- Rosenberg executions
1953: July -- Korean War ends
1954: March -- KGB established
1954 -- CIA helps overthrow unfriendly regimes in Iran and Guatemala
1954: July -- Vietnam split at 17th parallel
1955: May -- Warsaw Pact formed
1956: October - November -- Rebellion put down in Communist Hungary. Egypt took control of
Suez Canal; U.S. refused to help take it back.
1957: October 4 -- Sputnik launched into orbit
1958: November -- Khrushchev demands withdrawal of troops from Berlin
1959: January -- Cuba taken over by Fidel Castro
1959: September -- Khrushchev visits United States; denied access to Disneyland
1960s
1960: May -- Soviet Union reveals that U.S. spy plane was shot down over Soviet territory
1960: November -- John F. Kennedy elected President
1961: April -- Bay of Pigs invasion
1961: July -- Kennedy requests 25% spending increase for military
1961: August 13 -- Berlin border closed
1961: August 17 -- Construction of Berlin Wall begins
1962: -- U.S. involvement in Vietnam increased
1962: October -- Cuban Missile Crisis
1963: July -- Nuclear Test Ban Treaty ratified
1963: November -- President Kennedy assassinated in Dallas, Texas
1964: August -- Gulf of Tonkin incident
1965: April -- U.S. Marines sent to Dominican Republic to fight Communism
1965: July -- Announcement of dispatching of 150,000 U.S. troops to Vietnam
1968: January -- North Korea captured U.S.S. Pueblo
1968: August -- Soviet troops crush Czechoslovakian revolt
1969: July 20 -- Apollo 11 lands on the moon
1970s
1970: April -- President Nixon extends Vietnam War to Cambodia
1972: July -- SALT I signed
1973: January -- Cease fire in Vietnam between North Vietnam and United States
1973: September -- United States helps overthrow Chile government
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1973: October -- Egypt and Syria attack Israel; Egypt requests Soviet aid
1974: August -- President Nixon resigns
1975: April 17 -- North Vietnam defeats South Vietnam
1979: July -- SALT II signed
1979: November -- Shah of Iran overthrown; Iranian Hostage Crisis
1980s
1983: -- President Reagan proposes Strategic Defense Initiative
1983: October -- U.S. troops overthrow regime in Grenada
1985: -- Iran-Contra Affair (arms sold to Iran, profits used to support contras in Nicaragua)
1985: -- Mikhail Gorbachev ascends to power in Soviet Union
1986: -- Gorbachev ends economic aid to Soviet satellites
1986: October -- Reagan and Gorbachev resolve to remove all intermediate nuclear missiles from
Europe
1986: November -- Iran-Contra Affair revealed to public
1987: October -- Reagan and Gorbachev agree to remove all medium and short-range nuclear
missiles by signing treaty
1989: January -- Soviet troops withdraw from Afghanistan
1989: June -- China puts down protests for democracy; Poland becomes independent
1989: September -- Hungary becomes independent
1989: November -- Berlin Wall falls
1989: December -- Communist governments fall in Czechoslovakia, Bulgaria, and Rumania; Soviet
empire ends
1990s
1990: March -- Lithuania becomes independent
1990: May 29 -- Boris Yeltsin elected to presidency of Russia
1990: October 3 -- Germany reunited
1991: April -- Warsaw Pact ends
1991: August -- End of Soviet Union, Cold War Ends
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There is no exact definition of the term “State” in International Law. However in this law, the
essential criteria for statehood are well settled. Article 1 of the Montevideo Convention on the
Rights and Duties of States of 1933 provides the following:
The state as a person of international law should possess the following qualifications:
a. a permanent population;
b. a defined territory;
c. government; and
d. capacity to enter into relations with other States.
According to this article an entity to be a person of International Law, it should fulfill the
enumerated qualifications which are regarded as the essential requirements or characteristics of
statehood. However, these requirements are not exhaustive; other requirements may be relevant
including sovereignty, independence, self-determination and recognition; these requirements are
considered in correlation of the essential requirements. All these requirements are considered below.
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fixed and the boundaries be settled since these are not essential to the existence of a State, although
in fact all modern States are contained within territorial limits or boundaries.
The past practice shows that the existence of fully defined boundaries is not required and that
what matters is the existence of an effective political authority having control over a particular
portion of land. In 1913, Albania was recognized as a State by a number of States even though it
lacked settled boundaries, and Israel was admitted to the United Nations as a State in spite of
disputes over its existence and territorial delineation.
The existence of a particular territory over which a political authority operates is essential for the
existence of a State. For this reason, the “State of Palestine” declared in November 1988 at the
conference of Algiers was not legally regarded as a valid State since the Palestine Liberation
Organization had have no control over any part of the territory it was claiming.
The size of the territory of a State and alterations to its extent, whether by increase or decrease,
do not of themselves change the identity of that State.
A State continues to exist as long as a portion of land is retained.
(c) A Government
For a stable community to function reasonably effectively, it needs some sort of political
organization. It is required that an effective government be created, and this political authority
must be strong enough to assert itself throughout the territory of the State without a foreign
assistance. The existence of an effective government, with some sort of centralized administrative
and legislative organs, assures the internal stability of the State, and of its ability to fulfill its
international obligations.
However, the requirement related to the existence of an effective government having control
throughout its territory although strictly applied in the past practice, it has been subjected to certain
modification in modern practice. In certain cases, the requirement of an effective government was
not regarded as precondition for recognition as an independent State. The State of Croatia and the
State of Bosnia and Herzegovina were recognized as independent States by the member States of the
European Community, and admitted to membership of the United Nations at a time when
substantial areas of the territories of each of them, because of the civil war situations, were outside
the control of each government. In other cases, the requirement of an organized government was
unnecessary or insufficient to support statehood. Some States had arisen before government was
very well organized, as for example, Burundi and Rwanda which were admitted as States to the
membership of the United Nations in 1961.
Moreover, a State does not cease to exist when it is temporarily deprived of an effective
government because of civil war or similar upheavals. The long period of de facto partition of
Lebanon did not hamper its continuance as a State. The lack of a government in Somalia did not
abolish the international personality of the country. Even when all the territory of a State is
occupied by the enemy in wartime, it continues to exist as in the cases of the occupation of
European States by Germany in the Second World War and the occupation of Germany and Japan
by the Allied powers after that war.
Nevertheless, the requirement of effective government remains strictly applied in case when part
of the population of a State tries to break away to form a new State.
with other States. Such capacity is essential for a sovereign State; lack of such capacity will avert the
entity from being an independent State. Capacity distinguishes States from lesser entities such as
members of federation or protectorates, which do not manage their own foreign affairs, and are not
recognized by other States as full-members of the international community.
Some jurists consider sovereignty as an important criterion of statehood; even some of them use
the term sovereignty as a synonym for independence. The concept of sovereignty denotes, internally,
the supreme undivided authority possessed by a State to enact and enforce its law with respect to all
persons, property and events within its borders, and externally, the capacity of a State to enter into
relations with other States, such as sending and receiving diplomats and engaging in treaty making,
and the enjoyment of certain immunities and privileges from the jurisdiction of other States.
Sovereignty, in this regard, is the indication of the international personality of an entity seeking a
status of a State in the community of nations. Lack of sovereignty suggests that an entity is not
independent and has no international legal personality, and consequently, not a State. However,
some others reject sovereignty as a criterion of statehood on the considerations that Germany after
1945, although lost considerable extent of its sovereignty, it continued to exist as a State.
In the practice of States, the principle of self-determination has been used as a criterion modifying
the requirement of effective government. The evolution of the right of self-determination has
affected the level of effectiveness a concerned government required to exercise in order to fulfill such
requirement of statehood. Therefore, a lower level of effectiveness has been accepted; this occurred
particularly in decolonization situations where colonies were seeking their independence and the
creation of their States. Moreover, the principle of self-determination has been used as an additional
criterion of statehood in certain circumstances, such as, in the case of Rhodesia when it unilaterally
declared independence on November 11, 1965, and in the cases of the successor States of the former
Yugoslavia. This additional criterion may be required in the future in cases of certain national
minorities seeking independence and the creation of their States.
In the context of the constitutive theory of recognition, recognition has been required as an
additional criterion of statehood. The constitutive theory considers that the act of recognition
constitutes or creates the new State, i.e., that the existence of a State begins with its recognition by
other States. Accordingly, it is only through recognition that a State comes into being under
International Law. The practice of States has required recognition as an additional criterion of
statehood in certain instances, such as in the case of Rhodesia in 1965. At that time, although
Rhodesia might have been regarded as a State by virtue of satisfaction of all the requirements of
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statehood (the factual requirements) enumerated in the Montevideo Convention of 1933, its status as
a State was denied because no State did recognize it.
A. Rights of a State
The rights of a State are those inherent rights which a State is entitled to under International
law. These rights exist by virtue of the international legal order, which is able to define the rights of
its subjects.
Among the fundamental rights of a state are the following:
not absolute. A State has subjected its sovereign powers to several limitations by virtue of treaties or
decisions of international organizations of which it is a member, or by virtue of its consent.
B. Duties of a State
In correlation to the rights of the States, there are duties binding the States. All States are bound
to observe their duties under International Law. Non-compliance of a State with its duties
constitutes a violation of International Law for which it is responsible under this Law. Among the
duties of a State are the following.
However, the use of force is accepted and considered lawful under International Law only if it is
exercised in case of self-defense and in accordance with the provisions of the Charter of the United
Nations.
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STATE RESPONSIBILITY
State responsibility is one of the fundamental principles of International Law. It arises out of the
international legal system and the principles of State sovereignty and equality of States. It implies
that if a State commits an internationally wrongful (unlawful) act against another State, it will be
internationally responsible for reparation.
The subject of State responsibility has been the most difficult question of the codification work of
the International Law Commission (ILC). The ILC has been working extensively on this subject.
In 1975, the ILC initiated its work on the draft articles concerning State responsibility. The Articles
on the State Responsibility was finally adopted by the ILC on August 9, 2001. The General
Assembly adopted the resolution 83/56 of December 12, 2001, taking note of “the International
Law Commission’s Articles on the State Responsibility” and recommending it to the member States
of the United Nations. The ILC Articles, in addition to the State practice and the decisions of
international tribunals (the case law) on the subject, constitute the international law of State
responsibility.
The law of State responsibility is concerned with the nature of the State responsibility, the legal
consequences resulted from, and the implementation of such responsibility.
The “Articles” provides that every internationally wrongful act (a delict) of a State entails
responsibility. It defines internationally wrongful act as a conduct consisting of an action or
omission attributable to the State under International Law and constitutes a breach of an
international obligation of the State. A breach of an international obligation is defined as an act
which is not in conformity with what is required of the State by that obligation, regardless of its
origin or character.
Responsibility is the necessary corollary of a right. All rights of an international character involve
international responsibility.
International Law does not distinguish between contractual (conventional) and tortious
responsibility. International responsibility relates both to breaches of treaty and to other breaches of
legal duty.Any violation by a State of any obligation of whatever origin or character gives rise to
State responsibility and consequently to the duty of reparation. Reparation therefore is the
indispensable complement of a failure of a State to apply any of its obligations.
State responsibility only arises when the act or omission which constitutes a breach of legal
obligation is imputable (attributable) to a State. It may be founded on “fault” or “no fault” concept.
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Notably, it is important to mention here that a State is responsible for wrongful acts which
constitute international delicts, not international crimes. Because of the controversy concerning
State responsibility for international crimes, the ILC Articles does not mention international crimes.
However, the ILC Draft Articles made a distinction between international crimes and international
delicts. The Draft Articles provided that an international wrongful act resulting from the breach of
an international obligation which was essential for the protection of fundamental interests of the
international community and which was recognized as a crime by that community constituted an
international crime; examples of such international crimes were aggression, colonial domination,
slavery, genocide, apartheid and massive pollution of the atmosphere. All other international
wrongful acts constituted international delicts.
While it is apparent that a State is responsible for international delicts, it is not clear that it is
responsible for international crimes. The question of State criminal responsibility has been highly
controversial. Some have argued that the concept is of no legal value and cannot be justified. Others
have argued that since 1945 the attitude towards certain crimes committed by State has altered so as
to bring them within the scope of International Law. They have pointed to three specific changes
that have occurred since 1945 to justify States responsibility for international crimes.
The first change has been the development of the concept of peremptory norms of International Law
(jus cogens) as a set of principles from which no derogation is allowed.
The second change is the establishment of individual criminal responsibility directly under
International Law. Finally, the Charter of the United Nations and its provisions concerning the
enforcement action which may be taken against a State in case of committing a threat to or breaches
of the peace or act of aggression. In the light of these changes, the ILC, in its Draft Articles, adopted
the approach of including international crimes by States within the scope of International Law.
However, because of the controversy concerning this question, the ILC omitted any mention of
international crimes of States in its Articles as finally approved. The “Articles” provides that States
are under a duty to co-operate to bring an end, through lawful means, any serious breach by a State
of an obligation arising under a peremptory norm of International law and not to recognize as lawful
any such situation.
It is established by the case law that a State is liable for the conducts of any of its organs. This
established rule is reiterated by the ILC “Articles”. The ILC “Articles” provides that the conduct of
any State organ (including any person or entity) having that status under the internal law of that
State, whether that organ belongs to the constituent, legislative, executive, judicial or other
authority, whether its functions are of an international or an internal character, and whether it holds
a superior or a subordinate position in the organization of the State, shall be considered as an act of
the State concerned under International Law, provided that organ was acting in that capacity in the
case in question.
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The conduct of an organ of a territorial governmental entity within a State shall also be considered
as an act of that State under International law, provided that organ was acting in that capacity in the
case in question. The conduct of an organ of an entity which is not part of the formal structure of the
State or the territorial governmental entity, but which is empowered by the internal law of that state
to exercise elements of governmental authorities, shall also be considered as an act of the State under
International Law, provided that organ was acting in that capacity in the case in question.
It is also established that a State is liable for the acts of its officials if those acts are imputable
(attributable) to the State. This rule depends on the link that exists between the State and the person
or persons committing the wrongful act or omission. The State as a moral legal entity, in reality acts
through authorized officials. It is not liable under International Law for all acts of its officials; it is
liable only for acts of its officials that are imputable to it. Imputability is a legal notion which
assimilates the acts or omissions of the State officials to the State itself and which renders the State
liable for damages to persons or properties resulting from such acts.
The question of “immutability”, however, creates problems when officials exceed or disobey their
instructions. Because the evading of liability by a State in such a case will be unjust, it is established
that a State is liable for the acts of its officials, even when they exceed or disobey their instructions, if
those officials are acting with “apparent authority” or if they are abusing “powers” or “facilities”
placed at their disposal by the State. The ILC “Articles” reiterates such a rule by providing that the
conduct of any organ of a State, having acted in that capacity, shall be considered as an act of the
State under International Law even if such organ exceeded its competence according to internal law
or disobeyed instructions concerning its authority.
With regard of wrongful acts committed by private persons, in principle, a State is not responsible
for such acts. However, it is established by case law and reaffirmed by the ILC Articles that a State
is responsible for acts of private persons if those persons are acting on behalf of that state, on its
instructions, under its control, or exercising elements of governmental authority in the absence of
governmental officials and under circumstances which justify them in assuming such authority. It is
also responsible for acts of private persons if such acts are accompanied by some act or omission on
part of the State, for which it is liable. Such act or omission by the State may take one of the
following forms: encouraging the person to perform such act, failing to take reasonable care to
prevent the person from performing such act, failure to punish the person, obtaining some benefit
from the act of the person, or express ratification of the person’s act.
With regard of actions of rioters or rebels causing loss or damage to a foreign State or its
nationals, the general principle is that the State is not liable for such actions if it has acted in good
faith and without negligence. However, in such a case, the State is under a duty to show due
diligence. Nevertheless, when the rebellion movement succeeds in establishing the new government
of a State or a new State in part of the territory of the pre-existing State, it will be held responsible for
its activities prior to its assumption of authority; this rule is reaffirmed by the ILC Articles.
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maintains that the liability of the State is strict. Once a wrongful act causing damage has been
committed by a State official or organ, that State will be responsible under International Law to the
injured State irrespective of its intention. In contrast, the “fault” theory is based upon the principle
of subjective responsibility which requires the establishment of an element of intention, fault or
negligence on the part of the State official or organ before rendering the State liable for any damage.
There is no agreement in the International Law on the question of the basis of State
responsibility. The relevant cases and the opinions of legal scholars are divided on this question.
However, the majority of cases and opinions tend towards the “risk” theory of responsibility.
B. Reparation
The second legal consequence resulting from State responsibility for international wrongful act is
that the wrongdoing state is under a duty to remedy its acts. The injured State is entitled for full
reparation in form of restitution in kind, compensation and satisfaction, either singly or in
combination. The wrongdoing State cannot employ its internal law to avoid providing full
reparation.
Restitution in kind means that the wrong doing. State has to re-establish the situation that existed
before the committing of the wrongful act. It can be provided if it is not materially impossible, not
involving breach of an obligation arising from a peremptory norm of general International Law, not
involving a burden out of all proportion to the benefit which the injured State would gain from
obtaining restitution in kind instead of compensation, or not seriously jeopardize the political
independence or economic stability of the wrongdoing state.
If restitution in kind is not available, compensation for the damage caused must be paid.
Monetary compensation covers any financially assessable damage suffered by the injured state, and
may include interest, and may include, in certain circumstances, loss of profits. It may be paid for
both material and non-material (moral) damage.
Satisfaction is the third form of reparation. It is a remedy which is appropriate in cases of moral
damage and non-monetary compensation. It may take the forms of an official apology, a nominal
damage, the punishment of the guilty officials or the acknowledgement of the wrongful character of
an act.
obligation is owned to a group of States including it, and is established for the protection of a
collective interest of the group, or the obligation breached is owed to the international community as
a whole. In such cases, a State may demand the cessation of the wrongful act, assurances and
guarantees of non-repetition, satisfaction, as well as reparation. These doctrines are reaffirmed in
the ILC Articles.
Where several States are injured by the same wrongful act, each State may separately invoke
responsibility. Where several states are responsible, the responsibility of each may be invoked.
However, responsibility can not be invoked if the injured State has validly waived the claim, or it has
caused, by reason of its conducts, in the lapse of the claim. Any waiver needs to be explicit and
clear.
An injured State may seek to settle its claim peacefully through any of the peaceful means, or it
may take countermeasures against the wrongdoing State. In a case of an injury affecting its national,
the State may provide him with diplomatic protection.
A State may present an international claim against the wrongdoing State before an international
tribunal. However, a State has to establish its qualifications for bringing the claim and the validity of
the claim itself before the merits of the claim can be addressed. Where a claim is brought before an
international tribunal, objections may be raised against its admissibility. The first is an objection to
the jurisdiction of the tribunal; if successful, it will stop all proceedings in the case. Other objections
are the nationality of the claimant, the non-exhaustion of local remedies, and the undue delay in
presenting the claim.
Although a State is under a duty to protect its nationals, it is not under a duty to provide them
with diplomatic protection. A State may provide diplomatic protection to its nationals. Diplomatic
protection consists of resorting to diplomatic action or other means of peaceful settlement by a State
adopting in its own rights the cause of its nationals in respect of an injury to any of its national
arising from an internationally wrongful act of another State. Such diplomatic protection is not a
right of the national concerned, but a right of the State which may or may not choose to exercise.
The diplomatic protection is the result of the historical reluctance to permit individuals the right
in International Law to bring claims against foreign States, for reasons related to the principles of
state sovereignty and non-intervention in domestic affairs of a State. The exercise of diplomatic
protection is not regarded as intervention contrary to International Law. A State may take up the
claim of its national against another state before an international tribunal. Once a State does this,
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the claim then becomes that of the state, not of the injured individuals. Thus, the State may waive
its claim, but the individual cannot.
In International law, the normal and important function of nationality is to establish the legal
interest of a State when its national suffers injury or loss caused by another State. The subject matter
of the claim is the individual and his property, and the claim is that of the State. If the plaintiff State
cannot establish the nationality of the claim, the claim will be inadmissible because of the absence of
the legal interest of the claimant. The “nationality of the claim” principle is well established in
customary International Law. However, there are certain exceptions to the principle of the
nationality of the claim. Examples of such exceptions are the right of protection of an alien seaman
on a ship flying the flag of the protecting State, an alien in the service of the armed forces of a
claimant State, and stateless person or refuge who at the dates of the injury and presentation of the
claim is lawfully and habitually resident in that state.
The nationality must exist at the date of the injury, and should continue until at least the date of
the formal presentation of the claim. Where an individual possesses dual or multiple nationalities,
any State of which he is a national may adopt his claim against a third State. Where a case involves
more than one State of nationality, the State with which he has the more effective connection may
adopt his claim against the other State. As far as a moral legal person (such as a corporation) is
concerned, there must be some tangible link between it and the State adopting its claim.
Among the political and practical considerations suggested to justify such rule are the avoidance of
resorting to diplomatic protection in small and insignificant claims, and the greater suitability and
convenience of local courts as forums for claims of individuals. This rule is reaffirmed in the ILC
Articles which provides that the responsibility of a State may not be invoked if the claim is one to
which the rule of exhaustion of local remedies applies and any available and effective local remedy
has not been exhausted.
The exhaustion of local remedies rule does not apply where one State has been guilty of a direct
breach of International Law causing direct injury to another State. It applies to cases of diplomatic
protection where a State claims injury to its nationals, and when effective remedies are available in
the wrongdoing State. A claim will not be admissible in the International Law unless the natural or
legal foreign person concerned has exhausted the legal effective remedies available to him locally in
the defendant State.
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injury as a result of his improper activities. However, in such a case, the injury suffered by the
national must be roughly proportional to his improper activities.
D. Resorting to Countermeasures
An injured State may seek to settle its claim peacefully through any of the peaceful means, or
it may take countermeasures against the wrongdoing State. Countermeasures are acts of retaliation
which are traditionally known as “reprisal”. They may be in a form non-compliance of the injured
State with its legal obligations towards the wrongdoing State, or unilateral coercive actions taken by
the injured State against the wrongdoing State. Such measures are a type of self help utilized in
order to induce the wrongdoing State to discontinue its wrongful act and to provide reparation.
Today, there are certain legal limits to countermeasures. The most important limit is the
prohibition of the armed retaliations because of the general prohibition of the use of force provided
in Article 2(4) of the Charter of the United Nations. Countermeasures have to be proportional to the
wrongful act. They must not violate basic human rights or the peremptory norms of International
Law.
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Austin’s view: Austin and Thomes Hobbes insist that law is the command of a determinate superior
and that constantly no law can exist where there is no supreme lawgiver and no coercive
enforcement. If there is no sovereign authority then the rules could not be legal rules but rules of
moral or ethical validity.
Positive morality: Austin and his subscribers say that it is not true law but positive international
morality or rules of conduct of moral force only, for there is not supreme lawgiver and no coercive
enforcement in it. In that time Austin was rigid. International Law is not a true law but in this time
International Law is part of our law, and must be administrated by the courts of justice of
appropriate jurisdiction.
A constantly evolving body of norms: International Law is a constantly evolving body of norms
that are commonly observed by the members of international community in their relations with each
other for providing an orderly management of international relations.
Whether International Law qualifies as law or not - choice of the definition of law: Whether or
not one wishes to attribute a legal character to the norms of International Law depends largely upon
the definition of law he chooses to accept.
This question has been matter of discussion since long whether it is law? Some writers object the use
of word “law”. They say that states are free from external pressure. If they consent to follow the
principles of International Law, it does not mean they are debarred from their sovereign powers. It
does not affect their sovereign powers. In the opinion of some writers law is the name of rule which
every superior issues for inferior.
This rule binds the people to prepare its structure. Its compliance would be compulsory and its
violation will result in punishment. There is no such compulsion in International Law. In
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International Law there is not sovereign power that issues orders. If there is any sovereign power in
International Law, the sovereign power of the states will be lost.
There is no binding force behind it. It is not doubtful, that states observe the rules and regulations in
the compliance of international contracts with the feeling of betterment and ethics. These rules and
regulations are decided in their limits and are liable to revoke. There is no law force, which can stop
them in doing such act.
International Court of Justice is a forum where states bring their disputes for settlement but states are
no more bound to accept them and may refuse. It all depends upon them. There is no forum for its
explanation or interpretation. There is no concept of legislature in International Law for the
enactment and enforcement.
In the opinion of different writers International Law is not real law. According to Austin it has status
of positive international morality. It is a collection of emotions of people and common opinions.
DEMERITS OF INTERNATIONAL LAW: It has also some demerits as well as merits, which
make it weaker. These demerits are as follows:
1. Limited scope: In the present circumstances it seems ambiguous and of limited scope. There is no
solid organ of International Law, which can resolve the matters of states equitably. It could not
devolve person into state.
2. Ambiguous law: Some of its rules and regulations are not only uncertain but also ambiguous.
Pace of its development and promotion is deadly slow. It cannot combat with changing environment
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of the society.
3. No apparent authority: There is not executive class who can enforce the laws. It lacks the force of
law, which enforces the law, and gets exercised. Only International Court of Justice exists. There is
not existence of special courts that can decide the particular disputes. International Court of Justice
cannot settle certain matters. States do not allow International Court of Justice in the settlement of
disputes. After the decision is given, there is no such power that may get it enforced.
4. No administration power: There is no administrative power behind it that can get its decisions
enforced.
5. Little enactment: It has little room of enactment. Mostly matters such as excise, intercourse
between two or more states, taxes, and market etc. are excluded from its scope.
6. Non interference: International Law does not intervene in the matters, which takes place in any
member state.
7. Uncertainty about facts: There may be a genuine uncertainty about the facts. For instance, before
one who decide whether United States participation in the Vietnam fighting is legal or illegal, has to
decide whether the National Liberation Front (Viet-cong) in South Vietnam represents spontaneous
internal revolt or whether it represents subversion from North Vietnam.
8. Uncertainty about law: There may be a genuine uncertainty about the law. For instance, some
states think it is lawful to nationalize foreign property without compensation, others disagree. When
dispute arises between a state in the first group and a state in the second group, each will be
convinced that it is in the right, and it is impossible to predict how an international Court would
decide the case.
9. Internal disintegration: Sometimes international dispute may cause internal disintegration such
as demand for the increase of wages in employment. However wages are fixed by the contract of
employment and contracts can be altered by mutual agreement.
10. Unfriendly legal act: International Law does not prevent a state increasing its tariffs on goods
coming from another state, even though the result may be to cause severe unemployment in the
other state.
11. Dualism: Dualism can easily be observed in the solution of the international disputes. Dispute of
North Tamour has been solved whereas dispute of Kashmir stands unresolved. Terrorism in Israel
has not been condemned while liberation struggle of Palestine is condemned.
It is weaker law in the eyes of J. G. Starke. Another writer says that it is not only a weaker law but it
contains mostly on customary law.
Despite the existence of International Court of Justice many hurdles came in its development. This
law does not resolve the disputes.
How it can grow: Following are the some suggestions, which can determine its pace:
1. Rules and regulations of this law should be revised and taken into writing.
2. It should be given the form and shape as the ordinary law of the state.
3. It should be formed globally.
4. It should be developed through courts.
Many activities are being taken place in this regard. Conferences and other important treaties are
playing an important role in its growth. Changing political environment and expertise are trying in
changing the International Law. Also courts are playing important role for its development.
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Present day International Law: Austin’s views however rigid for his time are not true of present day
International Law. In 20th century a great mass of “international legislation” has come into
existence as a result of law making treaties and conventions.
Procedure for formulating rules: The procedure for formulating the rules of international legislation
is practically as settled if not as sufficient as any state legislative procedure.
Conclusion: International Law is law but a weak one, the cumulative evidence against the position
taken by Austin and his followers should not bind us to the fact that International Law is a weak
law.
Its enforcement devices: It is obvious that there are gaps and ambiguities in the law, that its
enforcement devices are often inadequate and it has not succeeded in eliminating the use of force in
international relations.
There is no world legislature, no international police, and no international Court with compulsory
jurisdiction.
In thirteenth century B. C. a contract took place between Egyptian King Pharaoh and Syrian King
after a war. It was consisted on the conditions of peace and co-operation and land acquisition. It was
written on a silver plate. It reveals that no doubt this system was available since long before and
states were made treaties as the same now is. In old time there was neither travelling arrangements
nor concept of states, but agreements were made. There was also diplomatic representation.
Disputes were settled with arbitration. There was tradition of asylum in that age.
Greek period: Greek nation was reluctant to maintain relationship with non-Greeks. They were
habitant to make slaves others. They had thought that only Greeks are born to be rulers. In words of
Aristotle, “nature has created non-Greeks only for to be slaves.” States either democratic or imperial
had mutual relationship and rules and regulations among them. Mostly matters were decided with
arbitration. They were not remain civilized but became cruel during war. War was not started
without declaration. Religious places were not destroyed. Killed/deceased people were buried.
Prisoners of War were exchanged. They had formed Greek union of nations. In that age treaties
were made. Such like states may enjoy peace and prosperity.
Roman period: Till 753 B. C. states were not too big. International Law was clarified till 3rd century
B. C. after the evaluation of big state founded. Relations were developed with Persia while making
the treaties with others. Roman were taken into consideration the principles set out by that former
states and they provided the legal protection. They made a treaty for common defence of states.
Non-member states could not enjoy such facility. War was formerly declared. Treaties were taken
into consideration without which existence was impossible. Principles they had formed played an
important role in International Law even today.
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Jews’ period: Jews were considered superior themselves than others. They had superior standard
than others. They had treated other inferiors. That’s why they did not contributed in the
development of International Law. They were severe enemy of many nations. During the peacetime
they had not good moral character. They had bad treatment for others during warfare. They were
killed children and aged people. They had good relationship with alien friends. They had respect for
diplomatic representatives. Their national law was applied in the territory of subjugated (beaten)
country. Agreements were made at the end of war.
Indian period: Historic period of India begins since thousand years’ back. Age of Raja Geet is
supposed with Alexander the Great. Brahmans, Khashtari, Waish, and Jain were also Hindus. They
had mutual co-operation. They had good relations among themselves. Agreements were made in
that age.
First period: First period of International Law is started right from the beginning of human history
and ends at formation of Roman empire. In this period there was respect of same race and same
religion. For the achievement of peace, ambassadors were sent. They had certain immunities. They
were not treated enemy but friend and had better relations. Romans applied rules relating with peace
and war. War was ceased upon the peace and friendship. Tradition of internationalism became
ceased after the fall of Roman Empire. Geographic boundaries were not defined. They were united
upon common race. Kings were the rulers over certain territories. Same principles of International
Law had been developed in this age.
Second period: In this age religious movements came into force. They left certain effects. They
emphasized on the importance of International Law.
Roman Empire: Second era was started with the creation of Roman state. It was spreaded over the
large part of the world. Need for the importance of International Law became end. Off and on any
incident took place which showed the importance of International Law. According to the law of
Rome, agreements were made and protected. In the failure to become friend, they were made slaves.
Christian influence: Christian religion gone to Italy. It became official religion of Italy State. This
era eliminated the question of International Law. Continuous crusades were started. They treated
Muslims their great enemy. Their revenge passions grown up after the concurrence over Bait-ul-
Maqdas of Muslims. Christian priests declared all the agreements prohibited with Muslims from
religious point of view. The crusades were remaining in operation till long. Despite of the fact,
agreements were made. In that age, there was also trend toward International Law.
Islamic influence: After the dawn of Islam, complete change took place. Infidels started harassment
to HazratMuhammad . In these circumstances they migrated from Makka to Madina. They founded
state, which became first Islamic State over the global map (Atlas). They fought many wars.
Muslims were martyred and concurred. Moral values were taken into consideration. Killing of
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women, children, and aged people, if they remain peaceful, transgression of limits, devastation of
crops, destruction of buildings and houses, ruin of gardens, killing of animals, and arson of public
places became prohibited. Weaker people were remitted. Muslims were spreaded over from east to
west.
Hazrat Muhammad said in his Tradition, “O people you are followers of one Allah and are progeny
of Adam. The best among you is who refrains from evils”. All the Muslims are brothers. An Islamic
state act upon the light of Quran. They do not discriminate, the matters of the world and hereafter.
Islam has made all the principles. Islam is code of life and teaches us in all spheres of life. Islam has
also clarified the International Law. Western writers have negated the importance of Islam in the
development of International Law. The period of Muslims was so brilliant.
Third period: There was a long war between king and church. German king created a big state. In
an agreement Pope took over the matters of religion and secular matter left for king. Despite of this
agreement the war period remains continue. In fifteenth century Pope became weaker. In
seventeenth century many small states came into existence that made mutual treaties. Despite of war
many contracts and peace pacts took place.
INTERNATIONAL LAW: International Law is the law, which governs the relations among states
and other international legal persons. The sources of International Law are customs grown up
among states and lawmaking treaties concluded by them. International Law regulates relations
between states.
International Law is a law not above but between sovereign states and it therefore a weaker law.
Municipal law: Municipal law is the law of a state, which governs the domestic affairs of the state.
The sources of Municipal Law are customs grown up within the boundaries of the state concerned
and statutes enacted by the law giving authority.
Municipal Law regulates relations between the individuals under the sway (influence) of a state and
the relations between the state and the individual.
Relationship between International Law and municipal law: There are certain questions which
come before international lawyer whether what are nice considerations between international and
municipal law. The most important practical problem of more immediate concern to municipal
courts are as to what extent may courts give effect International Law in municipal courts both where
such rules are, and where they are not in conflict with municipal law. It is a practical problem,
which requires consideration of the practice of states.
It is the practice of national courts that the relationship of international law to municipal law is of
fundamental importance which means that to what extent they are interrelated with each other, or
where they conflicts which will be preferred or the system are to oppose or to coordinate with each
other.
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Theories in this respect: There are two theories as to relation between International Law and
municipal law, i.e., dualism and monism.
State law is conditioned by the fundamental principle or rule that state legislation has to obey, while
International Law is conditioned by the principle “pactasuntservanda”. It means that agreements
between states are to be respected.
International Law binds individuals and entities other than states. B section is something misleading
to the extent of the superior state in International Law. Superior has definitely dominant role in
International Law despite the common will of the states.
State law is based upon the principle and norm, which sates legislation, has to be obeyed. In
International Law main principle is agreements between states that are to be respected. Thus the two
systems are entirely different. This theory not only has received support from positivists but non-
positivists writers and jurists. State law mainly is consisted on judge made law and the statutes
passed by legislature whereas International Law is comprised on the customary rules and treaties
among the states.
Monism: This is strictly scientific analysis. It is single unity composed of binding legal rules whether
those rules are obligatory on states, on individuals, and on entities other than states.
If it is generally accepted that International Law is a true law then there is no doubt to deny that the
two systems constitute part of that unity.
Kelson’s view: In the view of Kelson and other monist writers, there cannot be any escape from the
position that the two systems, because they are both systems of legal rules, are interrelated parts of
one legal structure.
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MORTENSON V PETERS: In this case High Court of Scotland gave effect to a municipal law
against the International Law but the state was under obligation to conform the International Law,
therefore, the executive in fact demolished the judgement in order to make Britain’s behavior
conform with her international obligation.
QUESTION OF PRIORITY: Monists are somewhat divided on this point whereas dualists assert
that the two systems are not to supersede, but to coordinate with each other, therefore, there arises
no conflict between the two.
Practice as to priority - case before International Tribunal: When the case in which conflict arises
between International Law and municipal law before an International Tribunal, the practice is to
prefer the International Law over the municipal law.
Practice as to priority - case before Municipal Court: Where conflict arises in a case before a
municipal Court (except where the state has adopted the International Law to supersede, by
constitution or law), the municipal law is preferred.
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“Substantive criminal law” is the set of rules indicating what acts constitute international crimes,
as well as on what conditions States may and must, under International Law, prosecute or bring to
trail persons accused of one of these crimes. “Procedural criminal law” is the set of rules regulating
the various stages of international trials for the prosecution of accused criminals.
The substantive and procedural rules of International Criminal Law are found, mainly, in the
various treaties of the International Humanitarian Law, and in various statutes of international
criminal tribunals.
Examples of the statutes of various international criminal tribunals are: the 1945 Statute of the
International Military Tribunal for the Major War Criminals at Nuremberg (IMT),
the 1946 Statute of the International Military Tribunal for the Far East (IMTFE),
the 1993 Statute of the International Criminal Tribunal for the former Yugoslavia (ICTY), the 1994
Statute of the International Criminal Tribunal for Rwanda (ICTR), and the 1998 Statute of the
International Criminal Court (ICC).
International Criminal Law has established individual responsibility, with criminal sanctions,
for non-observance of the rules of International Humanitarian Law. This responsibility applies to
each individual, who must answer for his conduct, even when acting on orders from a superior. A
superior is liable to criminal prosecution. The Head of State may have to answer for his actions.
The rules of the International Criminal Law will be the subject of the following sections: The
first section will deal with international crimes; and the second section will deal with the prosecution
and punishment of international crimes by national courts as well as by international tribunals.
The 1945 Statute of the International Military Tribunal for the Major War Criminals at Nuremberg
(IMT) and the 1946 Statutes of the International Military Tribunal for the Far East (IMTFE) added
new classes of international crimes to “war crimes”, namely “crimes against humanity” and “crimes
against peace”. “Crime of genocide”, which was considered as a special subcategory of crimes
against humanity, became an autonomous class of crime in 1948, when the General Assembly of the
United Nations adopted the Genocide Convention.
“Wars of aggression”, which were one of the subcategories of the broad category of “crimes against
peace”, themselves became a category of international crimes replacing what was known as “crimes
against peace” when the G.A adopted its Resolution on the Definition of Aggression in
1974. Recently, acts of international terrorism have been added as a distinct international crime.
The contemporary list of international crimes is formulated in the 1998 Rome Statute of the
International Criminal Court (ICC). Article 5 of the Statute lists the international crimes over which
the Court has a jurisdiction as the following:
(1) The crime of genocide;
(2) Crimes against humanity;
(3) War crimes; and
(4) The Crime of aggression.
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The ICC defines “crime against humanity” to mean any of the following acts when committed as
part of a widespread or systematic attack directed against any civilian population, with knowledge of
the attack:
(a) Murder;
(b) Extermination;
(c) Enslavement;
(d) Deportation or forcible transfer of population;
(e) Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules
of International law;
(f) Torture;
(g) Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or any
other form of sexual violence of comparable gravity;
(h) Persecution against any identifiable group or collectivity on political, racial, national, ethnic,
cultural, religious, gender, or other grounds;
(i) Enforced disappearance of persons;
(j) The crimes of apartheid; and
(k) Other inhumane acts of a similar character intentionally causing great suffering, or serious
injury to body or to mental or physical health.
3. War Crimes
War crimes are serious violations of customary or treaty rules belonging to International
Humanitarian Law or the Law of War (the body of substantive rules comprising “the Law of the
Hague” and “the law of Geneva”). They may be committed in the course of either international or
internal armed conflicts. They may be committed by military personnel against enemy servicemen or
civilians, or by civilians against members of the enemy armed forces or enemy civilians.
The ICC Statute provides that the Court shall have jurisdiction in respect of war crimes in
particular when committed as a part of a plan or policy or as part of a large-scale commission of
such crimes. According to this Statute, “War crimes” means:
(a) Grave breaches of the 1949 Geneva Conventions, namely any of the acts against protected
persons or property such as willful killing, torture or inhumane treatment, unlawful deportation or
transfer or unlawful confinement, taking hostages, and extensive destruction and appropriation of
property not justified by military necessary.
(b) Serious violations of the laws and customs applicable in international armed conflicts or in
armed conflicts not of international character, within the established framework of International
Law, namely such as acts committed against the life and dignity of persons; intentionally directing
attacks against civilians, civilian population, civilian objects, or against personnel, installations,
material, units or vehicles involved in humanitarian assistance; killing or wounded a surrendering
combatant; or employing prohibited weapons.
4. Crimes of Aggression
The 1974 General Assembly Resolution on the Definition of Aggression provides that aggression
is the use of force by a State against the sovereignty, territorial integrity or political independence of
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another state, or in any other manner inconsistent with the Charter of the United Nations.
Accordingly, “war of aggression” is a crime against International Law which gives rise to
international responsibility. Crimes of aggression comprise the following:
(a) The invasion of or the attack by the armed forces of a State on the territory of another State,
any military occupation, or any annexation by force of the territory or part of the territory of another
State;
(b) Bombardment, or use of any weapon , by the armed forces of a State, against the territory of
another State;
(c) Blockade of the ports or coast of a State by the armed forces of another State;
(d) Attack by the armed forces of a State on the land, sea, or air forces of another State;
(e) The sending by or on behalf of a State of armed bands, group, irregulars, or mercenaries,
which carry out acts of armed force against another States.
Traditionally, individuals have been subject to the exclusive jurisdiction of the State on whose
territory they live. Their Violations of international rules were prosecuted and punished by the
competent authority of the State where the acts of violations had been committed. However, such
prosecution and punishment were not possible unless the State was authorized to do so under its
own national law, and it was willing to proceed. If no prosecution and punishment had happened,
then the State, victim of the violation or of which the victim had its nationality, was entitled to
international claim against the delinquent State, which had either to punish the perpetrators or pay
compensation.
In such case, what was involved was the responsibility of the State. State responsibility was founded
on its failure to prosecute and punish the perpetrators. Notably, it is necessary to mention that if a
wrongful act had been committed by a State official in his official capacity, he was entitled abroad to
immunity form jurisdiction (prosecution and punishment).
However, few exceptions to the above tradition existed. One of the exceptions was “piracy”, a
practice which was widespread in the Seventeenth and Eighteenth Centuries. “Piracy” was
considered an international crime. “Pirates” were regarded as enemies of humanity because they
hampered the freedom of the high sea and infringed private property. So all States were empowered
to search for, prosecute and punish pirates, regardless of the nationality of the victims and of
whether the prosecuting State had been affected by piracy.
Another exception was “war crimes”, which gradually emerged as international crimes in the
second half of the Nineteenth Century. Traditionally such crimes were defined as violations of the
laws of warfare committed by combatants in wars (international armed conflicts). Individuals acting
as State officials, chiefly low-ranking members of the armed forces, could be prosecuted and
punished for violations of the laws of warfare. They could be prosecuted and punished, not only by
their own States, but also by the enemy State.
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Actually, the exceptional character of war warranted this deviation from the traditional rule, namely
the immunity of State’s officials from the jurisdiction of foreign States. For many years adversary
States prosecuted and punished the alleged perpetrators of war crimes on the basis of the principle of
“passive nationality” (the nationality of the victim), which entitles a State to exercise jurisdiction
over crimes committed against its nationals.
After the First World War, the Allied Powers prosecuted and punished those guilty of war crimes
either on the basis of the principle of territoriality that entitles the State to exercise jurisdiction over
crimes committed on its territory, or on the basis of passive nationality; in this later basis it was
sufficient for the victim to have the nationality of any of the Allied Powers.
The creation of the International Military Tribunal for the Major War Criminals (IMT) and the
International Military Tribunal for the Far East (IMTFE) in 1945 and 1946 respectively, and the
subsequent trails at Nuremburg and Tokyo of the German and Japanese war criminals, marked a
crucial turning point with regard to international crimes.
Two new categories of international crimes were emerged: crimes against peace and crimes against
humanity. State senior officials, high ranking military officers, politicians and high ranking
administrators, who were until 1945 protected by State sovereignty, became personally responsible
for their wrongdoings. They could be prosecuted by international tribunals as well as by foreign
States who could also punish them.
With the adoption of the Geneva Conventions in 1949, further important advances occurred as
regards international criminal law.New groups of war crimes were added, namely “grave breaches of
the Geneva Conventions”. An advanced system for repressing violations by States was set up. The
principle of universality of jurisdiction was laid down, according to which a contracting State could
prosecute an accused person held in its custody regardless of his nationality, of the nationality of the
victim, and of the place where the alleged violations had been committed.
With the adoption of the Protocol II Additional to the 1949 Geneva Conventions in 1977, and the
creation of the two ad hocinternational tribunals, the International Criminal Tribunal for the former
Yugoslavia (ICTY) and the International Criminal Tribunal for Rwanda (ICTR) in 1993 and 1994
respectively, a significant evolution of International Criminal Law took place. The notion of war
crimes was extended to include serious violations of international humanitarian rules governing
internal armed conflicts. Violators of these rules could be prosecuted by international tribunals.
A further significant evolution of International Criminal Law finally took place with the adoption
of the Statute of the International Criminal Court (ICC) in 1998. The ICC was established as the
permanent international court for international criminal justice, and complementary to national
courts. An almost comprehensive list of international crimes was formulated.
The apparent feature of International Criminal Law today is the possibility of prosecution of
international crimes by national courts as well as by international tribunals, whether ad hoc tribunals
or the International Criminal Court (ICC). In the following subsection, we will deal with the
prosecution by the ICC.
The attempts to establish a permanent international criminal court for the prosecution of
individuals committing international crimes succeeded when on 17 July 1998 the Statute of the
International Criminal Court (ICC) was signed at Rome. The ICC is established as a judicial organ
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The ICC is complementary to the national criminal jurisdictions. National courts enjoy priority in
the exercise of jurisdiction over persons committing international crimes except under special
circumstances, when the ICC is entitled to take over and assert its jurisdiction. The ICC is barred
from exercising its jurisdiction over crimes whenever a national court assets its jurisdiction over the
same crime and
In addition, the ICC may not prosecute a person whom already been convicted of or acquitted for
the same crimes, if the trail was fair and proper.
Nevertheless, the ICC is authorized to exercise its jurisdiction over a crime even if a case concerning
that crime is pending before national authorities, and thus to override national criminal jurisdiction,
whenever:
(1) the State is unable or unwilling to carry out the investigation or prosecution the person
concerned, and
(2) the case is of sufficient gravity to justify the exercise of the ICC jurisdiction. A State is “unable”
when, because of a total or partial collapse of its judicial system, it is not in a position to detain the
accused person, or to carry out criminal proceedings.
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(3) the proceedings are not being conducted independently or impartially or in any case in a manner
showing the intend to bring the person to justice.
The ICC may exercise its jurisdiction with respect of any international crimes if such a crime is
referred to the Prosecutor of the ICC by a State Party to the Statute, or by the security Council acting
under Chapter VII of the Charter of the United Nations, or if the Prosecutor has initiated an
investigation in respect of such a crime.
A State Party may refer to the Prosecutor a situation in which one or more crimes within the
jurisdiction of the Court appear to have been committed requesting the Prosecutor to investigate the
situation for the purpose of determining whether one or more specific persons should be charged
with the commission of such crimes. The Prosecutor may initiate investigation based on information
on crimes within the jurisdiction of the Court.
According to the Statute of the ICC, the Court has a jurisdiction over natural persons who
commit crimes within its jurisdiction. A person shall be criminally responsible and liable for
punishment for a crime within the jurisdiction of the Court if that person: commits such a crime;
orders, solicits or induce the commission of such a crime; facilitating the commission of such a
crime; contributing in any way to the commission or attempted commission of such a crime; or
attempts to commit such a crime.
Criminal responsibility and liability under the Statute of the ICC shall be applied to all persons
without any distinction based on official capacity. In particular, official capacity as a Head of State
or Government, a member of a Government or parliament, an elected representatives or a
government official shall in no case exempt a person from criminal responsibility under the Statute,
nor shall it, in and of itself, constitute a ground for reduction of sentence. Immunities or special
procedural rules which may attach to the official capacity of a person, whether under national or
International Law, shall not bar the Court from exercising its jurisdiction over such a person.
According to its Statute, the ICC may impose the following penalties:
(a) Imprisonment for a specified number of years, which may not exceed a maximum of 30 years; or
(b) A term of life imprisonment.
In addition to imprisonment, the Court may order: (a) A fine; or (b) A forfeiture of proceeds,
property and assets derived directly or indirectly from that crime.
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J. G. Starke: The term “extradition” denotes the process whereby one state surrenders to another
state at its request a person accused or convicted of a criminal offence committed against the laws of
the requesting state, such requesting state being confined to try the alleged offender.
A criminal may take refuge in a state which has no jurisdiction to try him, or in a state which is
unable or unwilling to try him because all the evidence and witnesses are abroad. To meet this
problem, International Law has evolved the practice of extradition, individuals are extradited, i.e.,
handed over, by one state to another state, in order that they may be tried in the latter state for
offences against its laws. Extradition also includes the surrender of convicted criminals who have
escaped before completing their punishment.
Object of extradition: Since extradition is the delivery of an accused or convicted individual to the
state on whose territory he is alleged to have committed, or to have been convicted of, a crime, by
the state on whose territory he happens for the time to be. The object of extradition can be any
individual, whether he is a subject of the prosecuting state, or of the state which is required to
extradite him, or of a third state.
Extradition in the absence of an extradition treaty: Following rules govern extradition in the
absence of extradition treaty:
Reciprocity or courtesy: In the absence of a treaty or statute, the grant of extradition depended
purely on reciprocity or courtesy. No government is understood to be bound by positive law of
nations to deliver up criminals and fugitives from justice who have sought an asylum within its
limits.
COMMON RULES: Following are the common rules, which govern the extradition in absence of
an extradition treaty:
1. Extraditable persons: There is uniformity of state practice to the effect that the requesting state
may obtain the surrender of its own nationals or nationals of a third state. But most states usually
refuse the extradition of their own nationals who have taken refuge in their territory, although as
between states who observe absolute reciprocity of treatment in this regard, requests for surrender
are sometimes acceded to.
2. Extraditable crimes: Serious crimes generally, states extraditing only for serious crimes, and there
is an obvious advantage in thus limiting the list of extradition crime since the procedure is so
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Exempted offences: As a general rule, the following offences are not subject to extradition
proceedings:
(1) Political crimes.
(2) Military offences, for example, desertion (escape).
(3) Religious offences.
5. Principle of specialty: This principle means that the requesting state is under a duty not to punish
the offender for any other offence than that for which he was extradited. This principle is approved
by the Supreme Court of the United States. In Great Britain its application is a little uncertain.
6. Rule of double criminality: As regards the character of the crime, most states follow the rule of
“double criminality”, i.e., that it is a condition of extradition that the crime is punishable according
to the law both of the states of asylum and of the requesting state.
7. Reasonable prima facie evidence: There must be reasonable prima facie evidence of the guilt of
the accused.
J. G. Starke: “Intervention” means something more than mere interference and much stronger
than mediation (reflection) or diplomatic suggestion. To fall within the terms of their prohibition, it
must be dictatorial interference, in opposition to the will of the particular state affected.
Quincy Wright: Quincy Wright’s view is that “intervention” may be diplomatic as well as military.
A diplomatic community of threatening tone, implying possible use of military measures may
constitute intervention.
Kinds of intervention: There are three different kinds of intervention, which are as follows:
1. Internal intervention: It is the interference by one state between disputing sections of the
community in another state either for protection of the legitimate government or the insurgents
(rebel).
2. External intervention: It is the intervention by one state in the relations generally of the hostile
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relations of other states. It is, in other words, an intervention in the foreign affairs of another state.
3. Punitive intervention: It is a punitive measures falling short of war and it in the nature of a
reprisal (revenge) for an injury suffered at the hands of another state.
When intervention can be permitted - general rule: General rule is that intervention is not allowed
under International Law. Use of force by one state against another state, is always unlawful.
Article 2 of the Charter of the United Nations clearly condemns intervention when it provides that
all members shall refrain in their relations from the threat or use of force against the territorial
integrity or political independence of any state.
Exceptional cases: There are, however, exceptional cases in which a state has at International Law a
legitimate right of intervention.
State servitude (slavery) - J. G. Starke: Stake defines an international servitude as “an exceptional
restriction imposed by treaty on the territorial sovereignty of a particular state whereby the territory
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of that state is put under conditions or restrictions serving the interest of another state.”
M. P. Tandon: It is a right whereby the territory of one state is made liable to permanent use by
another state for some specified purpose. For example, by agreement a state may be obliged to allow
the passage of troops of a neighboring state or may be prevented to fortify its frontiers in the interest
of the neighboring state.
L. Oppenheim: International servitude is that exceptional restrictions through which a state may
exercise certain rights over the territory of another state. State servitudes are those exceptional
restrictions made by treaty on the territorial supremacy of a states by which a part or the whole of its
territory is in a limited way made perpetually to serve a certain purpose or interest of another state.
Rights in rem: The right arising out of servitude is one in rem. It follows that the servitude remains
in force whatever happens to the territory of the state bound by the servitude, for example, if it be
annexed or merged in another state.
Object of state servitude: The object of state servitude is always the whole or a part of the territory
of the state the territorial supremacy of which is restricted by any such servitude.
Subjects of state servitude: Subjects of the state servitude are states only and exclusively, since state
servitude can exist between states only.
Kinds of servitude: Oppenheim mentions four kinds of servitude, which are as follows:
1. Military servitude: Military servitude is a servitude acquired for military purposes, such as, the
right to keep troops in foreign territory or to send an armed forces through foreign territory.
2. Economic servitude: Economic servitude is a servitude which is acquired for the purpose of
commercial interests, traffic, and intercourse in general, such as the right of fisheries in foreign
territorial waters, or to enjoy the advantages of a free zone for custom purpose, to built a railway-line
on foreign territory.
3. Positive servitude: Positive servitude means that a state has to perform certain acts on the
territory of another state. For example,
(1) Building and operating a railway in a certain territory.
(2) Construction of a customhouse.
(3) Having fishery rights in the territorial waters of another state.
(4) Lay down telegraph cable through foreign territory and such like.
4. Negative servitude: Negative servitude connotes that the state is bound by the servitude must
refrain from doing something on that territory or abstain from exercising its territorial rights in some
ways. For instance, it may permit a state to demand that a neighboring state shall not fortify its
frontiers or increase its naval on land armament beyond a certain limit.
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It is inspired by a feeling for humanity and is centered on the protection of human being in time of
war (armed conflicts). It seeks to mitigate the effects of armed conflicts by limiting the choice of
means and methods of conducting military operations and providing protections to persons and
civilian objects during armed conflicts.
International Humanitarian Law compiles those rules of International Law which aim to protect
persons, victims of the evils of armed conflicts, as well as, by extension, objects not directly serving
military purposes. In this sense, it is apparent that there is a relation between International
Humanitarian Law and the Law of Human Rights because both laws aim to guarantee to persons
the enjoyment of rights and freedom and to protect them from evils.
However, there is an essential difference between these two laws since International Humanitarian
Law applies only in time of armed conflicts, while Law of Humanitarian rights applies in all time.
How does “International Humanitarian Law” emerge and develop? What are its sources, scope and
content? How is it executed? These are the questions, which are answered in the following.
SECTION 1:
THE CODIFICATION AND DEVELOPMENT OF INTERNATIONAL HUMANITARIAN LAW
To protect man against the evils of war and cruel treatments is not a new idea. It goes back to the
dawn of history. In a distant past, some military leaders used to order their troops to spare the lives
of enemy prisoners (soldiers and civilians) and to treat them well. Often upon the termination of
war, the belligerent parties used to agree to exchange the prisoners in their hands. Throughout the
history, such practices and likewise gradually evolved into a body of customary rules regulating the
conduct of war.
Because the scope and content of the customary rules related to the conduct of war were
somewhat vague and uncertain, a movement was initiated during the Nineteenth Century to
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In 1864, mainly as a result of the pioneering effort of the Swiss businessman Henry Dunant, a
diplomatic conference convened in Geneva by invitation of the Swiss Government for the purpose of
codifying certain rules which would guarantee a better treatment of the wounded and facilitate the
work of the medical personnel in the field of land-war. On August 22, 1864, the conference adopted
the “Convention for the Amelioration of the Condition of the Wounded in Armies in the Field”.
The most important principles introduced by the 1864 Geneva Convention were: The neutrality
of ambulances and military hospitals, as such, they are protected and respected by the belligerents as
long as they accommodate wounded and sick; hospitals, ambulances and evacuation parties would
be distinguished by a uniform flag or armlet bearing “a red cross on a white ground”; the exemption
of hospital and ambulance personnel from being captured or being the target of fire; wounded and
sick combatants should be collected and cared for; and civilians coming to the assistance of the
wounded should be respected. This Convention was accepted by all the then independent States.
The 1864 Geneva Convention was the first modest step in the process of codifying rules of
International Humanitarian Law. This step was followed by many other steps, before the
“International Humanitarian Law” reached its present scope and content.
In 1868, the “Declaration of St Petersburg” came to prohibit the use of explosive or flammable
bullets. This Declaration, in fact, added strength to the principle of the Law of War concerning the
obligation of the belligerents to limit the use of force in meeting a legitimate military objective.
At the Hague Peace Conferences of 1899 and 1907, a series of conventions were adopted,
codifying the law of war. The Conventions were intended to set legal limits to means and methods
of land and naval warfare; such legal limits still form the basis of the existing rules. The
Conventions emphasized that belligerents remained subject to the “Law of Nations.” They
contained rules concerning the treatment of prisoners of war; the conduct of military operations,
particularly in regard of means of injuring the enemy, sieges and bombardments, and occupied
territory; and the rights and duties of neutral States. Moreover, One of these Conventions, namely
the “1907 Hague Convention for the Adaptation to Maritime Warfare of the Principles of Geneva
Convention” (the Tenth 1907 Hague Convention) expanded the protection of the 1906 Geneva
Convention to the victims of war at sea.
The 1864 Geneva Convention was revised twice, before and after the First World War, in order
to adapt its provisions to new realities. The first revision took place in 1906. The major achievement
of the “1906 Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in
Armies in the Field” was the development of the provisions for application of the principles
formulated in the 1864 Convention, taking into account the changes in the world, particularly the
growing development of the means of destruction, in order to make such principles more effective.
The second revision was made in 1929, taking into account the experiences of the First World War,
particularly those related to the treatment of the wounded, the sick, and the prisoners of war. Two
Conventions were concluded in 1929: the “1929 Geneva Convention for the Amelioration of the
Condition of the Wounded and Sick in Armies in the Field”; and the “1929 Geneva Convention
Relative to the Treatment of Prisoners of War”.
The two Conventions made important improvements to the old provisions of the Law of
Geneva. They formulated a clear and complete set of rules and principles on capture and captivity
of prisoners of war, and on the treatment of the wounded and the sick. They introduced the ban on
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reprisals against the prisoners of war, and the principle that application of the rules of the
Convention would be open to international scrutiny. Notably, in this 1929 Diplomatic Conference,
the “red crescent” was recognized as the symbol of Muslim countries in place of the “red cross”.
The atrocities of the Second World War provided the incentive for major revision and further
development of the law of Geneva. In 1949 a diplomatic conference was convened in Geneva at the
instigation of the International Committee of the Red Cross (ICRC) and by invitation of the Swiss
Government for such purposes. The 1949 Geneva Conference led to the conclusion of four
Conventions; three Conventions substituting the three Conventions in force, namely the Tenth 1907
Hague Convention and the two 1929 Geneva Conventions; and the Convention on the protection of
civilian persons in time of war, which was the innovation of this Conference.
The four 1949 Geneva Conventions deal respectively with the amelioration of the condition of the
wounded and sick members of the armed forces in the field, the amelioration of the condition of the
wounded, sick and shipwrecked members of the armed forces at sea, the treatment of prisoners of
war, and the protection of civilian persons in time of war.
In 1977, two Additional Protocols to the 1949 Conventions were adopted at the closing of the
1974-1977 “Conference on the Reaffirmation and Development of International Humanitarian Law
Applicable in Armed Conflicts” which was held in Geneva at the invitation of the Swiss
Government.
Protocol I deals with the protection of victims of international armed conflicts. It develops in
detail the rules of Geneva Conventions and The Hague Conventions concerning the methods and
means of warfare. Protocol II deals with the protection of victims of internal armed victims. It
develops and supplements the rules of the 1949 Geneva Conventions concerning the non-
international armed conflicts.
In addition to the 1949 Geneva Conventions and the 1977 Additional Protocols, several
conventions related to the protection of persons and objects in time of war, and related to the
prohibition of certain weapons, were adopted in the years after 1949.
Among these conventions are: The 1954 Convention for the Protection of Cultural Property in the
Event of Armed Conflict; the 1972 Convention on the Prohibition of the Development, Production
and Stockpiling of Bacteriological (Biological) and Toxin Weapons and Their destruction; the 1980
Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which
May be Deemed to Excessively Injurious or to Have Indiscriminate Effects; and the Chemical
Weapons Treaty of 1993.
SECTION 2:
SOURCES, SCOPE AND CONTENT OF INTERNATIONAL HUMANITARIAN LAW
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the territory of one of the contracting parties; in such cases, each party to the conflict shall be bound
to apply, as a minimum the specified provisions of the Conventions which guarantee to the victims
of this type of armed conflict at least the minimum protection. This position of the Geneva
Conventions regarding the non-international armed conflict occurring in the territory of a
contracting party constitutes derogation from the traditional principle of International Law
concerning the application of a convention only between the contracting parties (sovereign States);
such a position is reaffirmed in the 1977 Protocol II.
Protocol II provides that it apply to armed conflicts not covered by Protocol I, and to armed
conflicts taken place in the territory of a contracting party between its armed forces and dissident
armed forces or other organized armed groups which, under responsible command, exercise such
control over a part of its territory as to enable them to carry out sustained and concerted military
operations and to implement this Protocol. In this sense, Protocol II does not apply to situations of
internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts
of similar nature, as not being armed conflicts.
The 1977 Protocol I extends the application of the 1949 Geneva Conventions to include wars of
national liberation. It provides that it apply to cases of armed conflicts in which peoples are fighting
against colonial domination, alien domination and racist regimes in the exercise of their right of self
determination in accordance with the Charter of the United Nations and the 1970 “Declaration on
Principles of International Law….” It is thus apparent from the above developments that the scope
of International Humanitarian Law was gradually enlarged. Today this Law applies to all
circumstances: in cases of armed conflicts involving contracting parties as well as non-contracting
parties; in cases involving States as well as certain entities other than States; in cases of international
armed conflicts and wars of national liberation as well as non-international armed conflicts (internal
armed conflicts). This trend can be interpreted as modifying certain traditional concepts of
International Law, particularly those related to the subjects of the Law.
Notably, International Humanitarian Law recognizes two different categories of armed conflicts,
international armed conflicts and non-internal armed conflicts. International armed conflicts
(known as Wars) are those involve two or more States; wars of national liberation are considered
international armed conflicts. Non-international (internal) armed conflicts (usually known as civil
wars) are those warlike hostilities which occur in the territory of a single State
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2. Shipwrecked
Shipwrecked are persons, whether military or civilian, who are in peril at sea or in other waters as a
result of misfortune affecting them or the vessel or aircraft carrying them and who refrain from any
act of hostility.
3. Medical Personal
Medical personal are those persons, whether military or civilian, assigned, whether permanently
or temporary, by a party to the conflict, exclusively to the medical purposes or to the administration
of medical units or the operation or administration of medical transports. Medical purposes include
the search for, the collection, transport and treatment of the wounded and sick.
Medical personnel also include: the medical personnel of national Red Cross (Red Crescent)
societies and other national voluntary aid societies duly organized and authorized by a party to a
conflict; the medical personnel of a neutral or of other State which is not a party to that conflict, or
of a recognized and authorized aid society of such a State; and the medical personnel of an impartial
international humanitarian organization.[
“Medical units” means establishments and other units, whether military or civilian, organized
for medical purposes, namely the search for, collection, transportation, diagnosis or treatments of
the wounded, sick and shipwrecked or for the prevention of disease. This term includes hospitals
and the likes, and various medical centers.
“Medical transports” means any means of transportation, such as vehicles, ships and aircrafts,
whether military or civilian, permanent or temporary, assigned exclusively to medical transportation
and under the control of a competent authority of a party to the conflict.
4. Religious Personnel
Religious personnel are military or civilian persons, such as chaplains, who are exclusively engaged
in the work of their ministry and attached to the armed forces, medical units, medical transports, or
civil defense organization of a party to the conflict. They also include: those assigned by a neutral
or other State which are not a party to that conflict, or by a recognized and authorized aid society of
such a State; and those assigned by an impartial international humanitarian organization.
5. Prisoners of War
Prisoners of war are combatants who have fallen into the hands of the enemy, the adverse party
to the conflict. Combatants are members of the armed forces of a party to a conflict other than
medical and religious personnel. The armed forces of a party to a conflict consist of all organized
armed forces, groups and units (militias or volunteer corps forming part of such armed forces) which
are under a command responsible to that party for the conduct of its subordinates. Combatants also
include members of other militias and members of other volunteer corps, including those of
organized resistance movements, belonging to a party to the conflicts and operating in or outside
their own territory, provided that such groups fulfill the conditions specified in the Third Geneva
Convention, which are:
1) They are commanded by a person responsible for his subordinates;
2) They have a fixed distinctive sign recognizable at a distance;
3) They carry arms openly; and
4) They conduct their operations in accordance with the laws and customs of war.
6. Civilians and Civilian Population
Civilians mean persons who are not members of the armed forces of a party to the conflict, and not
members of other militias and members of other volunteer corps, referred to them as
combatants. The civilian population comprises all persons who are civilians.
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Among civilians, women and children (under fifteen years of age) are granted special status in
International Humanitarian Law, and consequently special protections.
7. Other Protected Persons
There are certain categories of persons who have not appeared in situations of armed conflicts until
quite recently. Although they are included within the meaning of civilians, they need special
attention because they are exposed, in case of armed conflict, to extreme danger. These persons are
the personnel of civilian defense organizations, and the journalists; Protocol I includes them within
the protection of the International Humanitarian Law.
The principles of Human Law corollary to the Law of War, such as the principle of military
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necessity and the principles of limitation are also behind the rules and principles of International
Humanitarian Law. The principle of neutrality provides the inspiration to the rules of International
Humanitarian Law, particularly those related to the immunity and protection of the medical
personnel and facilities.
The most important fundamental rules and principles formulated in International Humanitarian
Law, which constitute protections and guarantees to persons under this Law, are the following:
1. Persons taking no active part in hostilities, including members of armed forces who have laid
down their arms and those placed hors de combat (out of combat) by sickness, wound, detention, or
any other cause, shall in all circumstances be protected and treated humanely, without any adverse
distinction founded on race, color, religion or faith, sex, wealth, or any other similar criteria. Their
lives, and their physical and moral integrity shall be respected. Women shall be especially protected
against any attack on their honour, in particular against rape, enforced prostitution, or any form of
indecent assaults.
2. The wounded, sick and shipwrecked shall be collected, cared for, and protected by the party to
the conflict who has them in its power.
3. Medical personnel, establishments, transports and materials are protected. The emblems of
the Red Cross and the Red Crescent are the signs of such protection and must be respected.
4. It is forbidden to kill or injure an enemy who surrenders or who is out of combat. Captured
combatants and civilians under the authority of an adverse party are entitled to respect for their lives,
dignity, personal rights and convictions. They shall at all times be humanely treated. They shall be
protected against all acts of violence and reprisals. They shall have the rights to correspond with
their families and receive relief.
5. Every person shall be entitled to benefit from the fundamental judicial guarantees. No one
shall be responsible for an act he has not committed. No one shall be subjected to physical or mental
torture, corporal punishment or cruel or degrading treatment.
6. Individual or mass forcible transfer, as well as deportations of persons from occupied territory
to other territory are prohibited regardless of their motive.
7. Civilians and civilian population shall enjoy general protection against dangers from military
operations. They shall not be the object of attack. Acts or threats of violence to spread terror among
the civilian population are prohibited. Indiscriminate attacks are prohibited. Reprisals are
prohibited.
8. Civilian objects shall not be the object of attack or reprisals.
9. Parties to a conflict and members of their armed forces do not have an unlimited choice of
methods and means of warfare. They are prohibited from employing weapons or methods of warfare
of the nature to cause unnecessary losses or excessive suffering.
10. Parties to a conflict shall at all times distinguish between combatants and civilian population in
order to spare the civilian population. Attacks shall be directed solely against military objectives.
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State and individuals. The subject of individual criminal responsibility under International Law will
not be dealt with in the present chapter, but in the next chapter.
International Humanitarian Law requires each State to execute its obligations under it in all
circumstances, in time of peace and in the event of armed conflict. In addition, it attributes to the
protecting powers (States) and substitute organizations such as the Red Cross societies, the authority
to aid and assist in the execution of its rules.
A. Execution by States
In all the Conventions and Protocols of International Humanitarian Law, States undertake to
respect and ensure respect for them in all circumstances. States shall, therefore, take without delay
all the necessary measures for the execution of their obligations under them. They also shall give
orders and instruction to ensure observance of them, and shall supervise their execution.
States undertake, in time of peace as in time of war, to disseminate the Texts of the conventions
as widely as possible in their respective countries.They undertake to include the study thereof in
their military programmes and civil instructions, so that the principles thereof may become known to
the entire population, in particular to the armed fighting forces, the medical personnel and the
chaplains.
States undertake to enact any legislation necessary to provide effective penal sanctions for persons
committing, or ordering to be committed, any of the grave breaches of the Conventions defined
thereof. Each State is under the obligation to search for persons alleged to have committed, or to
have ordered to be committed, such breaches, and shall bring such persons, regardless of their
nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of
its own legislation, hand such persons over for trail to another State concerned, provided such State
has made out a prima facie case.
Each State is under the obligation to take measures necessary for the suppression of all acts
contrary to the provisions of the Conventions other than the grave breaches defined thereof.
B. Protecting Powers
During an armed conflict, the execution of the provisions of the Conventions and the Additional
Protocols should be ensured, to a certain extent, with the aid of the protecting powers entrusted to
safeguard the interests of the parties to the conflict. The first obligation of a party to the conflict after
the outbreak of armed conflict is to appoint a protecting power.
“Protecting power” means a neutral or other State not a party to the conflict which has been
designed by a party to the dispute and accepted by the adverse party and has agreed to carry out the
humanitarian functions assigned to a protecting power under the Conventions and the Additional
Protocols which aim to ensure protection and assistance to the victims of armed conflicts. In
performing their functions, the protecting powers also help in the implementation of International
Humanitarian Law.
C. Red Cross Societies
The protecting powers may be substituted by the International Committee of the Red Cross
(ICRC) or other impartial humanitarian organizations which offer all guarantees of impartiality and
efficacy. In addition to the humanitarian functions which the ICRC can perform in place of the
protecting powers, it is granted a sort of right of initiative in humanitarian activities. Among the
numerous functions which the ICRC can perform are the rights to visit all places where prisoners of
war or civilian internees are kept, and to interview these protected persons without witnesses,
personally or through an interpreter. Humanitarian functions can also be carried out by National
Red Cross or Red Crescent Societies, and by other duly recognized and authorized charitable
associations.
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SECTION 1:
THE CODIFICATION AND DEVELOPMENT OF INTERNATIONAL ENVIRONMENTAL LAW
Since the mid-1960s, the need to protect the environment resulting from the increase in the level
of understanding of the dangers facing the earth’s environment has instigated an effort, by
governments and by the United Nations as well as by non-governmental organizations, to invoke
legal protection of the environment both at domestic and international levels.
At the domestic level, most countries have promulgated environmental legislation to that end. At
the international level, the United Nations initiated in 1972 the long international process for the
codification and development of international environmental law as a separate new branch of
International Law.
Although the United Nations had convened some conferences addressing environmental issue
before 1972. For instance, the 1949 “United Nations Scientific Conference on the Conservation and
Utilization of Resources” which focused on exchanging experience in resources use and
conservation techniques, and the 1968 “UNESCO Conference of Experts on the Scientific Basis for
Rational Use and Conservation of the Resources of the Biosphere” which addressed the issues with
respect to the life-support systems of plants and animals. In this latter Conference, the United
Nations addressed for the first time a range of ecological issues and recognized Man’s relationship to
nature at the international level.
By the early 1970s, environmental issues were appearing on the agenda of various United
Nations organs and its specialized agencies as well as other organizations and agencies. In 1972, the
United Nations convened its “Conference on the Human Environment” (UNCHE) in
Stockholm; this Conference constituted the first major step in a process of codifying and developing
International Environmental Law as a separate but integral part of International Law.
This Conference focused mainly on protecting “the human environment.” It resulted in the
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adoption of four major initiatives concerning the normative, institutional, programmatic, and
financial aspects of the environment at the international level. The first initiative was the adoption
of “the Stockholm Declaration”, which intended to inspire and guide the peoples of the world in the
preservation and enhancement of the human environment. The second initiative was the agreement
to establish a new institution within the United Nations, which is “the United Nations
Environmental Programme” (UNEP). The third initiative was the adoption of “the Action Plan”
for the development of environmental policy which to be administered by the UNEP.
Since 1972 Stockholm Conference, there has been a remarkable proliferation of international
instruments concerning various environmental problems. These involve air pollution, marine
pollution, global warming and ozone depletion, the dangers of nuclear and other extra-hazardous
substances, Antarctica, and threatened wildlife species.
In the same year after the 1972 Stockholm Conference, the United Nations General Assembly
established “the United Nations Environmental Programme” (UNEP) as a subsidiary organ to deal
with environmental issues. The UNEP is based in Nairobi, Kenya, and consists of a Governing
Council of fifty-eight members elected by the G.A. This organ has contributed extensively to the
development of International Environmental Law.
It has been behind the conclusion of a number of conventions, such as “the 1985 Vienna Convention
for the Protection of the Ozone Layer” which imposes on States a few concrete obligations related
to the protection of human health and the environment, and “the 1987 Montreal Protocol on
Substances that Deplete the Ozone Layer”which aims at reducing and eventually eliminating
consumption and production of a range of ozone-depleting substances.
In 1989, “the Basel Convention on the Control of the Transboundary Movements of Hazardous
Wastes and their Disposal” was concluded. In 1991 “the Convention on Environmental Impact
Assessment in a Transboundary Contest”, was concluded. In 1992 “the Helsinki Convention on the
Protection and Use of Transboundary Watercourses and Lakes” and “the Helsinki Convention on
the Transboundary Effect of Industrial Accidents” were conclude. Moreover, after the 1972, the
General Assembly of the United Nations has adopted a number of resolutions concerning the
environment.
The process of the development of International Environmental Law was culminated in “the
United Nations Conference on Environmental and Development” (UNCED) which was held in Rio
de Janeiro in June 1992. The Conference was held to reconcile worldwide economic development
with protection of the environment. The Earth Summit, as this Conference is known, was the
largest gathering of world leaders in history, with 117 heads of state and representatives of 178
nations in all attending. By means of treaties and other documents signed at the conference, most of
the world's nations nominally committed themselves to the pursuit of economic development in
ways that would protect the Earth's environment and non-renewable resources.
Programme recognizes more explicitly than “the Stockholm Action Plan” the interrelations between
economic, environment, poverty and development issues. Agenda 21 outlines global strategies for
cleaning up the environment and encouraging environmentally sound development.
(3) “The Framework Convention on Climate Change” (known as “Global Warming
Convention”): An international treaty creating a regulatory regime to deal with the effects of
energy use at the Climate. It aims to stabilize the greenhouse gas emissions at a level that would
prevent dangerous anthropogenic (chiefly of pollution, originating from human activities)
interference with the climate system. It requires States to reduce their emission of carbon dioxide,
methane, and other “greenhouse” gases thought to be responsible for global warming. It contains a
set of principles that the parties shall be guided by in their efforts to achieve the objective of the
Convention, and a set of principles constituting commitments to be undertaken by the parties under
the Convention.
(4) “The Convention on Biological Diversity”: An international treaty creating a regulatory
regime to deal with the large-scale natural resources depletion. It aims at the conservation and
sustainable use of biological diversity, the fair and equitable sharing of the benefits from its use, and
the regulation of biotechnology. It requires States to take inventories of their plants and wild
animals and protect their endangered species.
(5) “The Non-legally Binding Authoritative Statement of Principles for a Global Consensus
on the Management, Conservation and Sustainable Development of all Types of Forests”: As
the title of this instrument suggests it is not a treaty, but a statement of principles with no binding
force.
This Statement of Principles aims at preserving the world's rapidly vanishing tropical rainforests. It
recommends that nations monitor and assess the impact of development on their forest resources
and take steps to limit the damage done to them.
In addition, the Rio de Janeiro Conference of 1992 established “the Inter- Agency Committee on
Sustainable Development” in order to improve co-operation between the various United Nations
organs and agencies concerned with this issue. In the same year, “the Commission on Sustainable
Development” (CSD) was established by the General Assembly and “the Economic and Social
Council of the United Nations” in order to follow up the 1992 Rio de Janeiro Conference, and to
keep under review the implementation of its instruments.
Since the 1992 Rio de Janeiro Conference, several international instruments, whether universal or
regional, dealing with various environmental issues have been adopted.The instruments deal with
issues such as trans-boundary pollution, marine environment and pollution, nuclear safety and
damage, desertification, Hazardous wastes, and watercourses, rivers and lakes. Among these
instruments, there is “the 1997 Kyoto Protocol to the United Nations Framework Convention on
Climate Change”.
It is important to mention that in 1994 the Global Environmental Facility, which was established
earlier, was transformed into a permanent financial mechanism to award grants and funds to
developing countries for global environmental protection projects. The Facility focuses upon climate
change, the destruction of biological diversity, the pollution of international waters and ozone
depletion.
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SECTION 2:
THE MAJOR EMERGENT PRINCIPLES OF INTERNATIONAL ENVIRONMENTAL LAW
The emergent principles and rules of International Environmental Law are laid down in the various
environmental instruments, conventions as well as non-binding statements, declarations and
resolutions, which have been adopted in the last thirty-three years. These principles and rules
accords rights and obligations to individuals, peoples and States with respect to global environment
and sustainable development. Although not all these principles and rules are binding, the non-
binding ones may constitute an evidence of the tendency of international community with regard to
such subjects. The most significant emergent principles and rules of environment and sustainable
development are the following:
(1) The Human Environmental Right: This principle accords all persons the right to a secure,
healthy and ecologically sound environment. It provides that every person has the fundamental right
to freedom, equality and adequate conditions of life, in an environment of a quality that permits a
life of dignity and well-being.
(2) The Principle of Sustainable Development: This principle considers human beings to be at
the center of concerns for sustainable development. It provides that the right to development must be
fulfilled so as to equitably meet developmental and environmental needs of present and future
generations.
(3) The Right to Development: This principle accords each State the right to development, and
the sovereign right to exploit its own resources pursuant to its own environment and developmental
policies. It provides that environmental protection should not outweigh the need of a State for
economic development. It also provides that economic and social development is essential for
ensuring a favorable living and working environment for human being and for creating conditions
on earth that are necessary for the improvement of the quality of life.
(4) The Principle of Integration of Environmental Protection and Development: This principle
provides that environmental protection should constitute an integral part of the development process
and cannot be considered in isolation from it.
(5) The Principle of Environment Protection and Precaution: This principle requires all states
to take all the precautionary measures according to their capabilities in order to protect the
environment. States should take precautionary measures to prevent or minimize environmental
degradation. They should minimize in an economically efficient manner harmful environmental
impacts. They should endeavor to limit and, as far as possible, gradually reduce and prevent air
pollution, including long-range trans-boundary air pollution.
(6) The Principle of Co-operation: This principle provides that international matters concerning
the protection and improvement of the environment should be handled in a co-operative spirit. It
requires States to co-operate in a spirit of global partnership to conserve, protect and restore the
health and integrity of the Earth’s ecosystem; and to develop policies and strategies by means of
exchanges of information and consultation and to exchange information to combat generally the
discharge of air pollution.
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(7) The Principle of State Responsibility for Damages to the Environment: This principle
imposes upon the States the responsibility to ensure that activities within their jurisdiction or control
do not cause damage to the environment of other States or areas beyond the limits of national
jurisdiction. States are liable for any damage caused by their breach of their obligations. Such
liability is absolute; States are liable for any adverse effects irrespective of fault.
(8) The Polluter-Pays Principle (the Civil Liability Principle): This principle entails that the
polluter should, in principle, bear the costs of pollution.
(9) The Principle of Notification and Consultation: This principle requires a State immediately
to notify other States of any natural disasters or other emergencies that likely to produce sudden
harmful effects on the environment of those States. States should provide prior and timely
notification and relevant information to potentially affected States on activities that may have a
significant adverse transboundary environmental effect and shall consult with those States at an
early stage and in good faith.
(10) Environmental Impact Assessment (EIA) Principle: This principle involves a procedure for
evaluation the likely impact of a proposed activity on the environment. The object of the assessment
is to provide decision-makers with information about possible environmental effects when deciding
whether to authorize the activity to proceed. Under this principle States are required to establish an
environmental assessment procedure that permits public participation and the preparation of
environmental impact assessment documentations.
(11) Environmental Monitoring Principle: This principle involves a process whereby States
observe, measure, evaluate and analyze, by recognized scientific methods, the risks or effects of
pollution or environmental harm. Unlike EIA, monitoring is generally undertaken after the project
has begun; its object is to check initial EIA prediction and determine whether measures are needed
in order to abate or avoid pollution or environmental harm.
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The reason for the exclusion of these types of international agreements is to avoid complication and
complexity if they are included in a single convention with written agreements between States, since
the rules governing them differ in certain aspects from the rules governing written agreements
between States. A special convention applicable to agreements between states and international
organizations, or between international organizations, namely “the Convention on the Law of
Treaties between States and International Organizations or between International Organizations”,
was signed in 1986. However, this Convention has not yet entered into force.
The following sections are devoted to the rules applicable to the written agreements between
States as provided by the 1969 Vienna Convention on the Law of Treaties. However, the rules
provided by this Convention are not inclusive; other rules existed under customary international law
continue to govern questions not regulated by the Convention.
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Under the Convention, every State possesses capacity to conclude treaties. Since States are
represented by persons, the Convention provides rules to ensure that persons representing States
have the power to adopt or authenticate the text of a treaty, or to express the consent of the State
bound by a treaty. Such persons must produce what is known as “full powers”. “Full powers”
refers to the document issued by the competent authority of the concerned State certifying that the
persons represent it. This requirement is necessary to ensure the States parties to the treaty that they
are dealing with the competent persons. However, there are certain persons who need not to
produce the “full powers”. These persons are:
(1) Heads of States, heads of governments and the ministers for foreign affairs, for the purpose of
performing all acts related to the conclusion of a treaty;
(2) Heads of diplomatic missions, for the purpose of adopting the text of a treaty between their
States;
(3) Representatives accredited by States to an international conference or to international
organization or one of its organs, for the purpose of adopting the text of a treaty in that conference,
organization or organ.
Once a draft of a treaty has been agreed upon by the competent persons, several stages need to be
followed before it becomes legally binding. First, the text of the treaty has to be adopted. The
adoption of the text of a treaty implies that the form and content of the text of the proposed treaty
are settled. It takes place by the consent of all the States participating in its drawing up, except the
adoption at an international conference, which takes place by the vote of two-third of the States
present and voting, unless by the same majority they decide to apply a different rule. The adoption
of the text of a treaty does not mean that the participating States have expressed consent to be bound
by the treaty, or that the treaty has been adopted.
Second, the text of a treaty has to be authenticated. Authentication is a procedural step whereby
the text of the treaty is established as correct and genuine, and not subject to alteration. It is
necessary to enable the States parties to the treaty to know definitively its content so that there will
be no confusion as to its exact terms. The authentication of the text of a treaty takes place according
to the procedure provided in the text or agreed upon by the States participating in its drawing
up. Failing such procedure, authentication may take place by the signature, signature ad
referendum or initiating by the representatives of the participating States.
signature should have that effect, or when the intention of the State to give that effect to the
signature appears from the full powers of its representatives or was expressed during the
negotiation. Signing the treaty means officially affixing the names of the representatives of the
contracting States.
The act of signature is usually a formal event. Often in important treaties, heads of States
formally affix their signatures in a ceremony. Usually in multilateral conventions, the representatives
of the participating States sign the treaties during a special closing session held for that reason.
the practice in the modern times that certain treaties remain open for accession by particular States
for some periods.
D. Reservation to a Treaty
It is well established in the practice of States that a State has a capacity, when becoming a party to
a treaty, to accept most of the provisions of a treaty or to object, for whatever reasons, to particular
provisions of a treaty. This capacity is reiterated by the Vienna Convention on the Law of Treaties
which states that a State may, when signing, ratifying, accepting, approving or acceding to a treaty,
formulate a reservation unless the reservation is either prohibited by the treaty or incompatible with
its object and purpose, or the treaty permits only specified reservations. A reservation is defined by
this Convention as “a unilateral statement, however phrased or named, by a State, when signing,
ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or modify the
legal effects of certain provisions of the treaty in their application to that
State”.
The effect of a reservation depends on whether it is accepted or rejected by the other parties to a
treaty, and this matter differs whether a treaty is bilateral or multilateral one. A reservation to a
bilateral treaty presents no problem since it constitutes a counteroffer which may reopen the
negotiation between the two parties concerning the terms of the treaty; and unless the reservation is
accepted by the other party, no treaty will be concluded. However, a reservation to a multilateral
treaty causes a problem because it may be accepted by some parties and rejected by others. In such a
case, the Convention on the Law of Treaties provides that a reservation expressly authorized by a
treaty does not require any subsequent acceptance by the other contracting States unless the treaty so
provides, and that 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.
The Convention requires that a reservation, an express acceptance of a reservation and an
objection to a treaty be formulated in writing and communicated to the contracting States and other
States entitled to become parties to the treaty. However, an acceptance of a reservation by a State
may be implied if it has 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. 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.
Unless the treaty provides otherwise, a reservation or an objection to a reservation may be
withdrawn at any time. In case of the withdrawal of a reservation the consent of a State which has
accepted the reservation is not required for its withdrawal. It is required that the withdrawal of a
reservation or of an objection to a reservation be formulated in writing. Unless the treaty provides
otherwise, or it is agreed otherwise, the withdrawal of a reservation or of an objection to a
reservation becomes operative only when notice of it has been received by the concerned State.
A reservation established with regard to another party 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 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 inter se, i.e. in their relations with each other.
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notifications and communications related to the treaty; giving certified copies of the treaty and
transmitting them to the concerned States; receiving any signatures, instruments, notifications and
communications related to the treaty; and informing the States parties to the treaty about the entry
into force of the treaty. Notably, the United Nations Secretariat plays a significant role as depositary
of multilateral treaties.
A. Observance of Treaties
The Latin principle “Pacta Sunt Servanda”, which means that treaties shall be observed, is the
fundamental principle of the customary law of treaties and the very foundation of International
Law. This principle is included in the Preamble and Article 26 of the 1969 Vienna Convention on
the Law of Treaties, which states that “[e]very treaty in force is binding upon the parties to it and
must be performed by them in good faith.” Another long-standing principle of customary
international law included in Article 27 of the Convention is that “[a] party may not invoke the
provisions of its internal law as justification for its failure to perform a treaty.”
According to these two principles, the parties to a treaty are under a duty to observe the treaty in
good faith, and a duty not to invoke its internal law as justification for failure to perform the treaty.
B. Application of Treaties
Under the Vienna Convention on the Law of Treaties, the application of treaties is subject to the
following rules:
Under Article 30, the rights and obligations of States parties to successive treaties related to the
same subject-matter shall be determined in accordance with the following rules:
a. When a treaty specifies that it is subject to, or that it is not to be considered as incompatible
with, an earlier or later treaty, the provisions of that other treaty prevail.
b. When all the parties to the earlier treaty are parties also to the later treaty but the earlier treaty
is not terminated or suspended in operation, the earlier treaty applies only to the extent that its
provisions are compatible with those of the later treaty.
c. When the parties to the later treaty do not include all the parties to the earlier one:
i. as between States parties to both treaties, the earlier treaty applies only to the extent
that its provisions are compatible with those of the later treaty;
ii. as between a State party to both treaties and a State party to only one of the treaties, the
treaty to which both States are parties governs their mutual rights and obligations.
In case of treaties concerning the same subject-matter and having incompatible provisions, the
presumption is that the later treaty prevails over the earlier treaty. A treaty may provide expressly
that it is to prevail over subsequent incompatible treaties; this is the case of Article 103 of the Charter
of the United Nations which stipulates that “[i]n 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.” Furthermore, a
particular treaty prevails over other treaties if it includes peremptory norms of general international
law (jus cogens), i.e. norms accepted and recognized by the international community of States as a
whole as norms from which no derogation is permitted and which can be modified only by
subsequent norms of general international law having the same character.
(4) Treaties and Third States
The Latin principle “pactatertiisnecnocentnecprosunt”, which means that a treaty creates neither
right nor obligation for third States (not parties to the treaty) without their consent, is a general
principle which constitutes part of the customary international law.The reasons for this principle can
be found in the fundamental principles of the sovereignty and independence of States, which
contemplate that States must consent to rules before they can be bound by them. This principle is
codified in article 34 of the 1969 Vienna Convention on the Law of Treaties as a general rule
corollary of the principle of consent and of the sovereignty and independence of States. However,
this Convention states certain exceptions to this general rule.
First, the Convention provides that an obligation may arise for a third State from a provision of a
treaty if the parties to the treaty intend the provisions of the treaty to be the means of establishing the
obligation, and the third State expressly accepts that obligation in writing. In such a case, the
obligation may be revoked or modified only with the consent of the parties to the treaty and of the
third States, unless it is established that they have agreed otherwise.
Second, the Convention provides that a right may arise for a third State from the 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, unless the
treaty provides otherwise. In such a case, the right may not be revoked or modified by the parties to
the treaty if it is established that the right has not been intended to be revoked or modified without
the consent of the third State. In exercising such a right the third State is required to comply with
the conditions for its exercise provided for in the treaty or established in conformity with the
treaty. Third, the Convention provides that a rule of a treaty may become binding upon a third State
if it becomes a part of customary international law.
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An example of a treaty imposes obligation upon non-party State is the 1815 agreement
concerning the neutralization of Switzerland. The apparent examples of rules which are binding
upon third States as customary international law are the rules of the 1899 and 1907 Hague
Conventions concerning land warfare, and the principles stated in Article 2 of the Charter of the
United Nations, especially those related to the peaceful settlement of disputes and the prohibition of
resorting to threat or use of force. As far as rights conferred upon third States by a treaty are
concerned, there are many treaties containing provisions in favor of third States (pactum in
favoremtertii). Examples of such treaties are the 1919 Treaty of Versailles which contains provisions
in favor of Denmark and Switzerland, and the 1888 Constantinople Convention which contains
provisions guaranteeing freedom of passage for ships through the Suez Canal.
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However, there are other established approaches of treaty interpretation not provided for in the
Vienna Convention on the Law of Treaties. Among these approaches is “the principle of
effectiveness” which involves the interpretation of the terms of a treaty in a way that will render the
treaty most effective and useful. This principle is of particular importance in the interpretation of
multilateral treaties establishing international organizations.
amendment will not bind any State already a party to the original treaty which is not a party to the
amending agreement. Any State which becomes a party to the treaty after the entry into force of the
amending agreement, unless it intends otherwise, is considered as a party to the treaty as amended in
relation to parties bound by the amending agreement, and as a party to the unamended treaty in
relation to any party to the treaty not bound by the amending agreement.
B. Modification of Treaties
The Vienna Convention provides that two or more of the parties to a multilateral treaty may
conclude an agreement to modify the treaty as between themselves alone if one of two conditions is
fulfilled. The first condition, if “the possibility of such a modification is provided for by the
treaty.” The second condition, if “the modification in question is not prohibited by the treaty” and
provided it “does not affect the enjoyment by the other parties of their rights under the treaty or the
performance of their obligation, and “does not relate to a provision, derogation from which is
incompatible with the effective execution of the object and purposes of the treaty as a whole.” The
Vienna Convention requires, however, that unless in the first mentioned case or if the treaty provides
otherwise, the parties in question must notify the other parties of their intention to conclude the
agreement and of the modification to the treaty.
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matter. This Convention describes rules governing invalidity of treaties in general, grounds for
invalidity of treaties, and consequences of the invalidity of treaties.
A. General Rules on Invalidity of Treaties
The Vienna Convention on the Law of Treaties provides that “the validity of a treaty or the
consent of a State to be bound by a treaty may be impeached only through the application of the
present Convention.” Under the Convention, a ground for invalidating (as well as for terminating,
withdrawal from or suspending the operation of a treaty) may be invoked only with respect to the
whole treaty, except where the ground relates solely to particular clauses which are separable and
unessential, or relates to a material breach of a treaty by one of the parties. A State cannot invoke a
ground for invalidating (as well as for terminating, withdrawal from or suspending the operation of a
treaty) if, after becoming aware of the fact, it expressly agreed that the treaty is valid or remains in
force, or it, by reason of its conduct, may be considered as having acquiesced in the validity of the
treaty or in its continuance in force or in operation.
B. Grounds for Invalidating Treaties
The Vienna Convention specifies the following grounds for invalidating treaties:
1) Manifest violation of a provision of fundamental importance of State’s internal law regarding
competence to conclude treaties: 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.”
2) Lack of the State’s representative appropriate full powers.
3) Excess of authority by the representative: Such an excess will be a ground to invalidate a
treaty if the specific restriction imposed by the State upon its representative to express its consent to
be bound by the treaty was notified to the other negotiating States prior to his expressing such
consent.
4) Error: 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 mistakenly assumed by that State to exist at the time
when the treaty was concluded, and that fact or situation forms an essential basis of its consent to be
bound by the treaty. If the State in question contributed by its own conduct to the error or if it was
put on notice of a possible error, it is not allowed to invoke such an error as a ground for invalidating
its consent. An error relating only to the wording of the text of a treaty does not affect its validity.
5) Fraud: A State may invoke the fraud as invalidating its consent to be bound by the treaty if it
has been induced to conclude that treaty by the fraudulent conduct of another negotiating State.
6) Corruption of a representative of a State: A State may invoke the corruption of its
representative as invalidating its consent to be bound by the treaty if the expression of its consent has
been procured through the corruption of its representative directly or indirectly by another
negotiating State.
7) Coercion of a representative of a State: Acts or threats directed personally against a
representative of a State as an individual in order to procure the expression of a State’s consent to be
bound by a treaty render such expression of consent without any legal effect.
8) 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 principles of International Law embodied in
the Charter of the United Nations.
9) Conflict of the treaty with an existing and emerging 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. If a new peremptory norm of general International Law
emerges, any existing treaty conflicting with that norm becomes void and terminated.
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The State may invoke the ground to invalidate the treaty. However, this right may be lost for the
following reasons:
(a) if after becoming aware of the fact, the concerned State expressly agreed that the treaty is valid or
remains in force or it, by reason of its conduct, may be considered as having acquiesced in the
validity of the treaty or in its continuance in force or in operation; or
(b) if the concerned State contributed by its own conduct to the error or was put on notice of a
possible error.
The Convention provides that an invalid treaty is void and without any legal effect. If acts have
nevertheless been performed in reliance on such a treaty, 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. Acts performed in good faith before the invalidity was invoked are not
rendered unlawful by reason only of invalidity of the treaty.
SECTION 8:
PROCEDURES TO BE FOLLOWED WITH RESPECT TO INVALIDITY, TERMINATION,
WITHDRAWAL FROM, OR SUSPENSION OF THE OPERATION OF A TREATY
The Vienna Convention provides that a party invoking a ground to invalidate a treaty, terminate
it, withdraw from it or suspend its operation, must notify, in writing, the other parties of its claim
and give them time to make objections before it takes any action. If after the expiry of a period
which shall not be less than three months from the receipt of the notification, no objection has been
raised by any party, the party making the notification may carry out the measures it has
proposed. If, however, objection has been raised by any party, the parties must seek a solution
through the peaceful means indicated in Article 33 of the Charter of the United Nations.
If no solution is reached within twelve months, the dispute is to be submitted to a special
conciliation commission set up under an annex to the Convention or, in cases of dispute involving
peremptory norms of general International Law to be submitted to the International Court of Justice
(ICJ).
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Third United Nations Conference on the Law of the Sea, 1973-1982 (UNCLOS III). This
Conference led to the conclusion of the United Nations Convention of the Law of the Sea on
December, 1982, which entered into force on November 16, 1994.
The 1982 Convention on the Law of the Sea constitutes a comprehensive codification and
development of contemporary international law governing the Sea in time of peace. Some of the
provisions of the 1982 Convention codify the existing customary international law of the sea; this is
particularly true of those provisions which repeat those of the four 1958 Conventions which codified
customary law. Almost all the provisions of the four 1958 Conventions are repeated, modified or
replaced by the 1982 Convention. But many of the provisions of the 1982 Convention depart from
the existing customary law; and those provisions do not represent existing law on the Sea for States
not parties to the 1982 Convention; they, however, indicate the directions in which the law may
develop in the future. All States are prima facie bound by the customary rules, while only the parties
to a particular convention will be bound by the new rules contained therein.
The 1982 Convention prevails over the four 1958 Conventions as among the States parties to
it. It deals with most of the issues related to the Sea. Among these issues are:
(1) Territorial Sea and Contiguous Zone;
(2) Straits Used for International Navigation;
(3) Archipelagic States;
(4) Exclusive Economic Zone;
(5) Continental Shelf;
(6) High Seas;
(7) Regime of Islands;
(8) Enclosed or Semi-Enclosed Seas;
(9) Rights of Access of Land-Locked States to and from the Sea and Freedom of Transit;
(10) The Area;
(11) Protection and Preservation of the Marine Environment;
(12) Marine Scientific Research;
(13) Development and Transfer of Marine Technology; and
(14) Settlement of Disputes.
In the following sections, most of the questions related to the above issues as provided by the
1982 Convention are discussed.
method; the coastal State may determine baselines in turn by any of these two methods to suit
different conditions. The baseline is the line from which the breadth of the territorial sea and other
coastal State zone, such as contiguous zone, exclusive economic zone or exclusive fishing zone, is
measured. The baseline forms the boundary between the internal waters on the landward side of the
coastal State and its territorial sea on its seaward side. Waters on the landward side of the baseline
of the territorial sea form part of the internal waters of the State, over which the State has an
absolute sovereignty. The outer limit of the territorial sea is the line every point of which is at a
distance from the nearest point of the baseline equal to the breadth of the territorial sea.
The normal baseline for measuring the breadth of the territorial sea is the low-water line (the line
on the shore reached by the sea at low tide) along the coast as marked on larger-scale charts officially
recognized by the coastal State. The method of straight baselines joining appropriate points may be
employed in drawing the baseline from which the breadth of the territorial sea is measured if the
coastline is deeply indented and cut into. However, this method may not be applied by a State in
such a manner as to cut off the territorial sea of another State from the high seas or an exclusive
economic zone. This method is also employed in a case of a river flowing directly into the sea or of
a bay. In a case of a river, the baseline shall be a straight line across the mouth of the river between
points on the low-water line of its banks.
In a case of a bay, if the distance between the low-water marks of the natural entrance points of a
bay does not exceed 24 nautical miles, a closing line may be drawn between these two low-marks,
and the waters enclosed thereby shall be considered as internal waters. Where the distance between
the low-water marks of the natural entrance points of a bay exceeds 24 nautical miles, a straight
baseline of 24 nautical miles shall be drawn within the bay in such a manner as to enclose the
maximum area of water that is possible with a line of that length, and the enclosed waters shall be
considered as internal water; however, this rule does not apply to so-called “historic bay”.
For the purpose of delimiting the territorial sea, the outermost permanent harbor works which
form an integral part of the harbor system are regarded as forming part of the coast; but off-shore
installations and artificial islands shall are not considered as permanent harbor works. Roadsteads
which are normally used for loading, unloading and anchoring of ships, and which are situated
wholly or partly outside the outer limit of the territorial sea, are included in the territorial sea.
Where the coasts of two States are opposite or adjacent to each other, neither of the two States is
entitled, failing agreement between them to the contrary, extend its territorial sea beyond the median
line every point of which is equidistant from the nearest points on the baselines from which the
breadth of the territorial seas of the two States is measured. This rule, however, does not apply
where it is necessary by reason of historic title or other special circumstances to delimit the territorial
seas of the two States in a different way.
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(3) The right to enact laws and regulations, in conformity with the 1982 Convention and other
rules of International Law, particularly in respect of navigation, health, customs, immigration and
preservation of the environment.
(4) The right to take the necessary steps in its territorial Sea to prevent passage which is not
innocent.
(5) The exercise of criminal jurisdiction on board of a foreign ship (arresting any person or
conducting any investigation in connection with any crime committed on board of the foreign ship)
in the following cases: if the consequences of the crime extend to it; if the crime is of a kind to
disturb the peace of the country or the good order of its territorial sea; if the assistance of the local
authorities has been requested; if the measures are necessary for the suppression of illicit traffic in
narcotic drugs; or after leaving its internal water.
(6) The exercise of civil jurisdiction in relation to a foreign ship (levy execution against or arrest
the ship for the purpose of any civil proceedings) in respect of obligations or liabilities assumed or
incurred by the ship itself in the course or for the purpose of its voyage through its waters, or in
respect of any civil proceedings against a foreign ship after leaving its internal waters.
Passage must be continuous and expeditious; however, it may include stopping and anchoring in so
far as they are incidental to ordinary navigation or are rendered necessary by force majeure or distress
or for the purpose of rendering assistance to persons, ships or aircraft in danger or distress. Passage
must take place in conformity with the 1982 Convention and with other rules of International
Law. Passage must be innocent; it is innocent so long as it is not prejudicial to the peace, good order
or security of the coastal State.
The right of innocent passage is also exists in internal waters where the establishment of a
baseline in accordance with the straight baselines method provided by the 1982 Convention has the
effect of enclosing as internal water areas which had not previously been considered as such.
The right of innocent passage is also enjoyed by submarines and other underwater
vehicles. However, it is required that they navigate on the surface and show their flag.
The 1982 Conventions provides that the coastal State must not hamper the innocent passage of
foreign ships through its territorial seas except in accordance with the Convention. The Coastal
State, in the application of the Convention or of any laws or regulations adopted in conformity with
it, must not impose requirements aiming at denying or impairing the right of innocent passage, or
discriminate on form or in fact against the ships of any State or against ships carrying cargoes to,
from or on behalf of any State. It must give appropriate publicity to any danger to navigation, of
which it has knowledge, within its territorial sea. It must not levy any charges upon foreign ships by
reason only of their passage through its territorial sea; charges may be levied as payment only for
specific services rendered to the ship.
The coastal State is under a duty not to exercise its criminal jurisdiction on foreign ship passing
through it territorial sea, except in the cases specified by the Convention (mentioned above). It is
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also under a duty not to exercise civil jurisdiction in relation to a foreign ship or a person on its
board, except in the cases specified by the Convention (mentioned above). Notably, the warships
and other government ships operated for non-commercial purposes are immune from any
jurisdiction; however the coastal State, in a case of failure of any of these ships from complying with
its laws and regulations, may order it to leave its territorial Sea immediately.
Against these duties, the coastal State entitled to certain rights in respect of the right of innocent
passage granted to foreign ships. The coastal State may adopt laws and regulations, in conformity
with the provisions of the Convention and other rules of International Law,related to innocent
passage through its territorial sea, with which the foreign ships must comply. It may suspend
temporarily in specified areas of its territorial sea the innocent passage of foreign ships for security
reasons.
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or high seas; or the legal regime of straits in which passage is regulated in whole or in part by long-
standing international convention in force specifically related to such straits (For example, the
Turkish Straits of the Bosphorus and the Dardanelles which are regulated by the Montreux
Convention of 1936).
The regime of passage in international straits specified in the Convention includes the right of
transit passage and the right of innocent passage.
connect a part of the high seas or an exclusive economic zone and the territorial sea of a foreign
State.
The right of innocent passage granted to ships and aircraft in these straits are governed by the
provisions of the Convention related to the right of innocent passage in the territorial sea, except that
no suspension of innocent passage through such straits is permitted, for whatever reason.
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margin, as the Convention provides, comprises the submerged prolongation of land mass of the
coastal State, and consists of the sea-bed and subsoil of the shelf, the slope and the rise; it, however,
does not include the deep ocean floor with its oceanic ridges or the subsoil thereof.
As regarding the delimitation of the continental shelf between States with opposite or adjacent
coasts, the Convention provides that it should be effected by agreement on the basis of International
Law; if no agreement can be reached within a reasonable period of time, the States concerned
should resort to the procedures of settlement of disputes provided for in the Convention.
In the continental shelf, the Convention establishes sovereign rights for the coastal States and
rights and freedoms for other States, as well as, imposes duties on them. The coastal State may
exercise over the continental shelf sovereign rights for the purpose of exploring it and exploiting its
natural resources. Such rights are exclusive in the sense that if the coastal State does not explore the
continental shelf or exploit its natural resources, no one may undertake these activities without the
express consent of the coastal State. The coastal State has the exclusive right to construct and to
authorize and regulate the construction, operating and use of artificial islands, installations and
structures on the continental shelf, as well as, to authorize and regulate drilling on the continental
shelf for all purposes. It has the right to establish reasonable safety zones around its installations to a
limit of 500 meters, which must be respected by ships of all States.
The Convention provides that the rights of the Coastal State over the continental shelf do not
depend on occupation or any express proclamation, and do not affect the legal status of the
superjacent waters or of the air above those waters. In exercising its rights over the continental shelf,
the convention requires from the coastal State not to infringe or result in any unjustifiable
interference with navigation and other rights and freedoms of other States as provided for in the
Convention (such as the laying or maintenance of cables or pipelines). Moreover, the Convention
imposes upon the coastal State to pay to the International Sea-Bed Authority annual payments or
contributions in kind in respect of the exploitation of the nonliving resources of the continental shelf
beyond 200 miles; such payments or contributions shall be distributed by the Authority to the States
parties to the Convention, on the basis of equitable sharing criteria, taking into account the interests
and needs of developing States, particularly the least developed and the land-locked among them.
Under the Convention, all States are entitled to lay cables and pipelines on the continental shelf,
in accordance with the relevant provisions of the Convention.
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to sail ships flying its flag on the high sea, to exercise its jurisdiction in civil and penal matters, and
to exercise control in administrative, technical and social matters over them.
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consists of the principal organs, which are the Assembly, the Council and the Secretariat, the
Enterprise, and certain subsidiary organs.
Actually, there are more than twenty marine areas which can be regarded as enclosed or semi-
enclosed seas according to the criteria specified by the 1982 Convention. Among these areas are the
Baltic Sea, the Black Sea, the Caribbean Sea, the East China Sea, the Mediterranean Sea, the Red
Sea, the South China Sea, the Gulf of Mexico, the Gulf of Oman, and the Arabian Gulf. In
international practice, co-operation among the States bordering enclosed or semi-enclosed seas has
been taken in matters such as conservation of the living resources and marine pollution prevention
and control.
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Moreover, the Covenant provided that any fully self-governing State, Dominion or Colony not
named in the Annex might become a Member of the League if its admission was agreed to by two-
thirds of the Assembly, provided that it would give effective guarantees of its sincere intention to
observe its international obligations, and would accept such regulations as might be prescribed by
the League in regard to its military, naval and air forces and armaments.
The Covenant provided that any Member of the League might, after two years' notice of its intention
so to do, withdraw from the League, provided that all its international obligations and all its
obligations under this Covenant had been fulfilled at the time of its withdrawal. It also provided that
any member who had violated any provisions of the Covenant might be declared to be no longer a
member of the League by a vote of the Council concurred in by the representatives of all other
members of the League represented thereon.
The League of Nations had 42 founding members excluding United States of America which did
not join the League, although American diplomats encouraged the league's activities and attended
its meetings unofficially. 16 of founding members left or withdrew from the League; Yugoslavia was
the only founding member to leave the League and return to it later and remained until the end. In
the founding year six other states joined, only two of them remained members until the end. In later
years 15 more states joined, three of them did not stay until the end. Egypt was the last state to join
in 1937. The Union of Soviet Socialist Republics was expelled from the league five years after it
joined on December 14, 1939. Iraq was the only member of the League that was under its mandate;
it became a member in 1932. In conclusion, during the League’s 26 years, a total of 63 nations
joined the League; 28 were members for the entire period.
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nations. In case any such emergency should arise the Secretary General should on the request of any
Member of the League forthwith summon a meeting of the Council.
4. The Members agreed to submit any dispute between them either to arbitration or judicial
settlement or to enquiry by the Council, and they agreed in no case to resort to war until three
months after the award by the arbitrators or the judicial decision, or the report by the Council. In
any case the award of the arbitrators or the judicial decision required to be made within a reasonable
time, and the report of the Council shall be made within six months after the submission of the
dispute.
5. The Members agreed to carry out in full good faith any award or decision that might be
rendered, and that they would not resort to war against a Member of the League which complied
therewith. In the event of any failure to carry out such an award or decision, the Council was
required to propose what steps should be taken to give effect thereto.
In addition, subject to and in accordance with the provisions of international conventions existing
or hereafter to be agreed upon, the Members of the League undertook:
1. To secure and maintain fair and humane conditions of Labour for men, women, and children,
both in their own countries and in all countries to which their commercial and industrial relations
extend, and for that purpose would establish and maintain the necessary international organizations;
2. To secure just treatment of the native inhabitants of territories under their control;
3. To entrust the League with the general supervision over the execution of agreements with
regard to the traffic in women and children, and the traffic in opium and other dangerous drugs;
4. To entrust the League with the general supervision of the trade in arms and ammunition with
the countries in which the control of this traffic is necessary in the common interest;
5. To make provision to secure and maintain freedom of communications and of transit and
equitable treatment for the commerce of all Members of the League. In this connection, the special
necessities of the regions devastated during the war of 1914-1918 shall be borne in mind;
6. To take steps in matters of international concern for the prevention and control of disease.
1. The Assembly
The Assembly consisted of Representatives of the Members of the League. Each member state
had one vote. The Assembly held its sessions once a year in September. The Assembly had the
authority to deal at its meetings with any matter within the sphere of action of the League or
affecting the peace of the world.
Decisions of the Assembly on important matters required the agreement of all the Members of the
League represented at the meeting. All matters of procedure at meetings of the Assembly required
to be decided by a majority of the Members of the League represented at the meeting.
2. The Council
The League Council had the authority to deal with any matter within the sphere of action of the
League or affecting the peace of the world. The Council began with four permanent members (
Great Britain, France, Italy, Japan) and four non-permanent members elected by the Assembly
every three years. The first four non-permanent members were Belgium, Brazil, Greece and Spain.
United States was meant to be the fifth permanent member, but the United States Senate voted on
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March 19, 1920 against the ratification of the Treaty of Versailles, so the fifth permanent seat was
taken by China. Germany joined the League and became a sixth permanent member of the Council
on September 8, 1926, taking the Council to a total of fifteen members. With the departure of
Germany and Japan from the League, their places were taken by new non-permanent members.
The Council met in ordinary sessions four times a year, and in extraordinary sessions when
required. In total, 107 public sessions were held between 1920 and 1939. Decisions of the Council
on important matters required the agreement of all the Members of the Council represented at the
meeting (a unanimous vote by the Council), while decisions on matters of procedure required a
majority of the Members represented at the meeting.
3. The Secretariat
The Secretariat was the administrative organ of the League (acting as the civil service for the
League). It was located in Geneva, Switzerland. It was headed by the Secretary General. The staff
of the League's secretariat was responsible for preparing the agenda for the Council and the
Assembly and publishing reports of the meetings and other routine matters. The General Secretary
wrote annual reports on the work of the League.
Over the life of the League from 1920–1946, the three Secretaries General were: Sir James Eric
Drummond (U.K.) (1920-1933);Joseph Avenol (France) (1933-1940); Seán Lester (Ireland) (1940-
1946).
Other Bodies
The Permanent Court of International Justice and several other agencies and commissions were
created by the League of Nations to deal with pressing international problems. The agencies and
commissions were: the Disarmament Commission, the Health Organization, the International
Labour Organization, the Mandates Commission, the Permanent Central Opium Board, the
Commission for Refugees, and the Slavery Commission. While the League itself generally failed to
achieve its mission, several of its agencies and commissions succeeded in their respective missions.
Several of these institutions were transferred to the United Nations (UN) after the Second World
War. The International Labour Organization was brought into affiliation with the UN. The
Permanent Court of International Justice became a UN institution as theInternational Court of
Justice. The Health Organization was restructured as the World Health Organization.
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However, the League generally failed in its mission to achieve disarmament, prevent war, settle
major disputes through diplomacy, and improve global welfare. It failed to settle the disputes over
Cieszyn (between Poland and Czechoslovakia), Vilna (between Poland and Lithuania), Ruhr
(between France and Belgium on one side and Germany on the other side), and the island of Corfu
(between Italy and Greece). It also failed to prevent the Japanese invasion of Manchurian (China)
in 1931, the Chaco War between Bolivia and Paraguay in 1932, the Italian invasion of Abyssinia in
1935, and the Spanish Civil War in 1936. Above all, it failed to prevent Axis rearmament which
constituted a major event led to the outbreak of the Second World War.
The League also worked to combat international trade in opium and sexual slavery and helped
alleviate the plight of refugees, particularly in Turkey during the 1920s.
The failure of the League of Nations in achieving its objectives was the result of the following:
(1) The League lacked an armed force of its own. It depended on the Great Powers to enforce its
resolutions, which they were reluctant to do. Its two most important members, the United Kingdom
and France, were reluctant to use sanctions, particularly to resort to military action on behalf of the
League.
(2) The economic sanctions, which were the most severe measures the League could decide short of
military actions, were difficult to enforce and had no great impact on the sanctioned state, because it
could simply trade with states outside the League.
(3) The Council of the League was required to adopt its resolutions by a unanimous vote of its nine
members (later fifteen members), so conclusive and effective action was difficult, if not impossible to
be taken. It was also slow on coming to its decisions. Some decisions also required unanimous
consent of the Assembly of the League, i.e., the agreement by all members of the League.
(4) The representation at the League was a problem. Although the League was intended to
encompass all nations, many never joined, or their time as members of the league were short. The
League was seriously weakened by the non-adherence of the United States of America; the U.S.
Congress failed to ratify the Treaty of Versailles (containing the Covenant). The League also further
weakened when the three permanent members of the Council, Germany, Italy and Japan, left in the
1930s.
(5) Most members of the League were occupied with the protection of their own national interests
rather than the fulfillment of their commitments to the League and its objectives.
With the outbreak of Second World War, it was clear that the League of Nations had failed in its
purpose which was to avoid any future world war. During the war, the League ceased its activities;
neither the League's Assembly nor Council was able or willing to meet, and its secretariat in
Geneva was reduced to a skeleton staff, with many offices moving to North America.
After the failure of the League of Nations to prevent war, nations of the world decided to create a
new body to fulfill the League's role, but to take it further. This body was to be the United
Nations (UN). At a meeting of the Assembly in 1946, the League dissolved itself and transferred its
services, mandates, and property to the UN. Many League bodies, for instance the International
Labor Organization, continued to function and eventually became affiliated with the UN.
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Traditionally, diplomatic relations have been conducted through ambassadors and their staffs.
However, with the growth of trade and commercial transactions the office of consul was established.
Today, diplomats and consuls perform useful functions in the host states. They provide
permanent presence in host States, pursue friendly relations between their States and the host States,
and promote the various interests of their States in the host states.
Because of the important roles played by diplomats and consuls in international relations, it is
necessary to treat this subject in the following two sections. Thus, section one is devoted to
diplomatic mission, while section two is devoted to consular post.
Today, all States are represented in foreign States by diplomatic representatives. These
diplomatic representations are of a permanent nature, although representatives are changeable.
The emergence of permanent as distinct from temporary diplomatic missions is dated back to the
th
17 Century. Rules related to rights, duties, privileges and immunities of diplomatic representatives
were developed through customs in the 18th Century. In the early 19th Century, some common
understandings on the rules were reached to at the Congress of Vienna of 1815. Developments of
diplomatic rules have continued since that date. The new and the most extensive codification of the
diplomatic law was achieved in 1961 by the conclusion of the Vienna Convention on Diplomatic
Relations.This Convention both codified existing rules and established others. It laid down rules
related to classes of heads of a diplomatic mission, members of a mission, appointment and
reception of the head of a mission, functions of a mission, the privileges and immunities of a mission
and its members, the duties of the members of a mission, the duties of the receiving State, and the
termination of the mission. It provided that matters not regulated by the Convention continue to be
governed by the rules of customary International Law. In the following, all these rules are dealt
with.
Under the 1961 Vienna Convention on Diplomatic Relations, members of the diplomatic mission
are the following:
(1) The head of the mission: The person who is charged by the sending State with the duty of
acting in that capacity.
(2) Members of the diplomatic staff: The members who have diplomatic rank.
(3) Members of the administrative and technical staff: The members who are employed in the
administrative and technical service of the mission.
(4) Members of service staff: The members who are employed in the domestic service of the
mission.
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The Convention divided Heads of diplomatic missions into three classes, namely:
(1) Ambassadors accredited to Heads of States.
(2) Special envoys and ministers accredited to Heads of States.
(3) Charges d’affaires accredited to Ministers for Foreign Affairs.
The class to which the head of a mission is assigned is a matter of agreement between the
concerned States. Except as concerns precedence and etiquette, there is no differentiation between
heads of a mission by reason of their class. However, heads of missions are to take precedence in
their respective classes in the order of the date and time of taking up their functions.
Under the Convention, the appointment of a diplomatic agent (the head of the diplomatic
mission or any member of the diplomatic staff) is subject to the agreement of the receiving States
which has the right to refuse the appointment of any particular person without being obliged to give
reasons. Because of the possibility of refusing the proposed person, it is the practice of States that
the sending State usually notifies the receiving State of the name of the person proposed to be
appointed a diplomatic agent. When the receiving State gives its consent to the proposed person,
then the sending State can proceed with the formal appointment of the diplomat and accredit
him. Accreditation is done by furnishing the head of the mission or any member of the diplomatic
staff with certain official papers known as “letter of credence” or credentials. The credentials of the
head of a mission are presented to the Head of the receiving State in a ceremonial reception.
It is still, however, that the receiving state can at any time without obliged to explain its decision
to notify the sending State that a particular diplomat is persona non grata; in such case, he should be
recalled and his functions should be terminated.
The Convention grants the head of the diplomatic mission and members of the diplomatic staff of
the mission as well as members of their families certain privileges and immunities from jurisdiction
of the receiving State. It has been the practice that an ambassador to a certain State submits to the
Ministry for Foreign Affairs of that State a list containing the names of members of the diplomatic
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mission with their positions, ranks and functions, and the names of persons who should be granted
full or limited immunity.
The most important privileges and immunities granted to a diplomatic agent (the head of the
mission and members of diplomatic staff) are:
(1) A complete immunity from the criminal jurisdiction of the receiving State;
(2) Immunity from the civil and administrative jurisdiction of the receiving state, except in the case
of:
i. a real action related to private immovable property situated in the territory of the receiving state,
unless he holds it on behalf of the sending State for the purpose of the mission.
ii. an action related to succession in which he is involved as executor, administrator, heir or legatee
as a private person and not on behalf of the sending State;
iii. an action related to any professional or commercial activity exercised by him in the receiving
State outside his official functions.
(3) The inviolability of his person.
(4) Exemption from all dues and taxes, personal or real, national, regional or municipal in the
receiving state, except indirect taxes, taxes and dues on private immovable, dues on inheritance,
dues and taxes on private income, and charges levied for specific services rendered;
(5) Freedom of communication for official purposes;
(6) The right to move freely in the territory of the receiving State.
(7) The inviolability of his private residence.
(8) The inviolability of his papers, correspondence and property
The above privileges and immunities are enjoyed by a diplomatic agent 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. He
also enjoys such privileges and immunities when passes through or is in the territory of a third State
on proceeding to take up or to return to his post, or when returning to his own country.
The immunity from jurisdiction granted to a diplomatic agent is immunity from the jurisdiction
of the receiving State and not from liability. He is not immune from the jurisdiction of the sending
State. Moreover, he can be sued in the receiving state after a reasonable time elapses from the
ending of his mission.
The immunity of a diplomatic agent from jurisdiction of the receiving State may be waived by the
sending State. The waiver must be express. However, such waiver of immunity from jurisdiction
does not imply waiver of immunity in respect of the execution of a judgment; in such case, a
separate waiver is required. Immunity may also be waived by the diplomatic agent himself, by
submitting voluntarily to the jurisdiction of the court of the receiving State.
Members of the family of a diplomatic agent, if they are not nationals of the receiving State,
likewise enjoy the same privileges and immunities. The same privileges and immunities, with
certain exceptions, is enjoyed by members of the administrative and technical staff of the mission,
together with members of their families forming part of their respective households, if they are not
nationals or permanent residents of the receiving State. Members of the service staff who are not
nationals or permanent residents of the receiving State enjoy immunity from jurisdiction only in
respect of acts performed in the course of their official duties.
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As regard the mission itself, the Convention makes its premises, achieves, documents,
correspondence and diplomatic bag inviolable. Moreover, it grants the premises of the mission, their
furniture and other property thereon, and the means of transport of the mission the immunity from
search, requisition, attachment or execution. The premises of the mission are also exempt from all
national, regional or municipal dues and taxes, other than such as represent payment for specific
services rendered
(1) Breaking off the diplomatic relations between the sending and the receiving States because of
a war or any other reason.
(2) A recall of the diplomatic agent by his sending State upon its initiative, or at the request of the
receiving State.
(3) A notification by the sending State to the receiving State that the functions of the mission or
the diplomatic agent has come to its end.
(4) A notification by the receiving State that the diplomatic agent is a persona non grata.
(5) Resignation of the diplomatic agent.
(6) Death of the diplomatic agent.
SECTION 2: CONSULAR POST
The institution of consular post is much older than that of diplomatic mission. The modern
system of consular post is dated back to the 16th Century. The 1963 Vienna Convention on Consular
Relations is the law governing consular representation. A consular officer (any person, including the
head of the consular post, entrusted with the capacity to exercise consular functions) like a
diplomatic agent, represents his State in the receiving State. However, unlike a diplomatic agent, he
is not concerned with political relations between the two States, but with a variety of administrative
functions, such as issuing visas and passports, looking after the commercial interests of his State, and
assisting the nationals of his State in distress.
In the following, the rules governing consular relations, namely members of the consular post,
classification of the head of the post, the appointment of consular officers, functions of the consular
post, privileges and immunities of consular officers, and the termination of post, are dealt with.
A. Members of the Consular Post and Classification of the Heads of the Post
The members of the consular post as stated by the 1963 Vienna Convention are:
(1) The head of the post: The person charged by the sending State with the duty of acting in that
capacity.
(2) Consular officers, other than the head of the consular post: Persons entrusted to exercise
consular functions.
(3) Consular employees: Persons employed in the administrative and technical service of a
consular post.
(4) Members of the service staff: Persons employed in the domestic service of the consular post.
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(5) Members of the private staff: Persons employed exclusively on the private service of members
of the consular post.
The heads of a consular post are divided into four classes, namely:
(1) Consuls-General.
(2) Consuls.
(3) Vice-Consuls.
(4) Consular agents.
The class to which a head of a consular post is assigned is a matter of agreement between the
concerned states.
B. Appointment of a Head of the Consular Post
The head of a consular post is appointed by the sending State and is admitted to exercise his
functions by the receiving State. The sending State normally notify the appointment of a consul to
the receiving State which has the right either to issue an “exequatur” or refuse to issue it without
obliged to give reasons. The exequatur is a written official recognition and authorization of the
consul. If the receiving State has no objection against the appointment, the exequatur is
issued. Normally, a consul does not take his post until receiving an exequatur. If subsequently, an
objection is raised, the receiving State may notify the appointing State that the consul is no longer
acceptable. Then the appointing State must recall him, if it does not, the receiving State may
withdraw the exequatur. Furthermore, a receiving State may notify the sending State that any
member of the consular post is not acceptable.
Consular post is different from diplomatic mission in its functions. While diplomatic mission is
concerned with political relations between the two States, the consular post exercises a variety of
administrative functions. Furthermore, while there is only one diplomatic mission in a State, there
can be more than one consulate in one State. The major functions of consular posts are:
(1) Protecting the interests of the sending State and its nationals in the receiving State.
(2) Furthering the development of commercial, economic, cultural and scientific relations
between the sending State and the receiving State.
(3) Promoting friendly relations between the sending State and the receiving State.
(4) Reporting to the sending State on the conditions and developments of the commercial,
economic, cultural and scientific life of the receiving State, and giving such information to interested
persons.
(5) Issuing passports and travel documents to nationals of the sending State, and giving visas to
persons wishing to travel to that State.
(6) Helping and assisting nationals of the sending State, safeguarding their interests in certain
cases, and representing or arranging for their representation before the courts and other authorities of
the receiving State.
(7) Transmitting judicial and extra-judicial documents to the receiving State.
(8) Exercising a supervision and inspection powers over vessels and aircrafts having the
nationality of the sending State, and over the crews of these vessels and aircrafts.
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(9) Acting as notary and civil registrar, and performing certain functions of administrative
nature.
A consular post can perform other functions entrusted to it by the sending State which are not
prohibited by the laws and regulations of the receiving State, not objected by the receiving State, or
referred to in the international agreements in force between the sending state and the receiving State.
Nowadays, many States combine its diplomatic and consular services together. Thus, a person
who acts simultaneously as a diplomatic agent and a consular officer enjoys the diplomatic privileges
and immunities under the 1961 Vienna Convention on Diplomatic Relations. If the consular
functions are exercised by the consular post, then the consular officer enjoys the consular privileges
and immunities under the 1963 Vienna Convention on the Consular Relations.
Under the 1963 Vienna Convention on the Consular Relations, consular posts, members of a
consular post (consular officers and employees), members of their families and members of their
private staff enjoy certain privileges and immunities. These privileges and immunities are less than
what diplomatic mission and diplomatic agents are entitled to. The most important privileges and
immunities are the following:
(1) A consular officer (the head of the consular post and any person entrusted to exercise
consular functions) is immune from an arrest or detention pending trial, except in the case of a grave
crime and pursuant to a decision by the competent judicial authority. He is immune from
imprisonment or any other restriction on his personal freedom save in execution of a final judicial
decision. If criminal proceedings are instituted against him, he must appear before the competent
authorities. The proceedings must be conducted in a manner that respects his official position and
does not hamper the exercise of consular functions, and with the minimum delay.
(2) A consular officer and a consular employee (any person employed in the administrative or
technical service of the consular post) are immune from the jurisdiction of the judicial or
administrative authorities of the receiving State only in respect of acts performed in exercise of
consular functions. However, they do not enjoy such immunity in respect of a civil action either:
i. Arising out of a contract concluded by them not as agents of the sending State; or
ii. Brought by third party for damages arising from an accident in the receiving State caused by
vehicle, vessels or aircraft.
(3) A consular officer and a consular employee and members of their families forming part of
their households are exempt from all dues and taxes, except on certain specified cases.
(4) A member of the consular post (the head of the post, any person entrusted to exercise
consular functions, any person employed in administrative or technical service of the post and in the
domestic service of the post) is under no obligation to give evidence concerning matters connected
with the exercise of his functions or to produce official correspondence and documents related
thereto. He is also entitled to decline to give evidence as expert witness with regard to the law of the
sending state.
(5) A member of the consular post enjoys the freedom of communication for official purposes.
(6) A member of the consular post enjoys the right to move freely in the territory of the
receiving State.
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(7) The archives, documents, official correspondence and consular bag are inviolable at any
time and whenever they may be.
(8) The premises of the consular post and the private residences of members of the consular
post are inviolable. They are, also, exempt from all taxes and dues other than such as represent
payment for specific services.
The above privileges and immunities are enjoyed by the member of the consular post 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. The same privileges and immunities
are enjoyed by members of the families of the members of the consular post.
The privileges and immunities of the consular post may be waived by the sending State. The
waiver must be express and be communicated to the receiving State in writing. However, the waiver
of immunity from jurisdiction for the purposes of civil or administrative proceedings does not imply
waiver of immunity from the execution of a judicial decisions; in such case, a separate waiver is
required. Immunity may also be waived by the member of the consular post himself, by submitting
voluntarily to the jurisdiction of the court of the receiving State.
The consular functions may be terminated by various ways and reasons. Among these ways and
reasons are the following:
(1) A recall of the member of the consular post by his appointing State upon its initiative, or at the
request of the receiving State.
(2) A notification by the appointing State to the receiving State that the functions of the post or
any of its members are terminated.
(3) The withdrawal of the exequatur by the receiving State.
(4) Resignation of the member of the consular post.
(5) Death of the member of the consular post.
(6) The breaking off relations between the sending and receiving States, such as in case of a war.
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International Law Notes by Aamir Mahar
PART VI
Malcolm Shaw’s engaging and authoritative International Law has becomethe definitive textbook
for instructors and students alike, in this increasingly popular field of academic study. The
hallmark writing style provides a stimulating account, motivating students to explore the subject
more fully, while maintaining detail and academic rigour. The analysis integrated in the textbook
challenges students to develop critical thinking skills. The sixth edition is comprehensively
updated throughout and is carefully constructed to reflect current teaching trends and course
coverage. The International Court of Justice is now examined in a separate dedicated chapter and
there is a new chapter on international criminal law. The detailed references and reliable,
consistent commentary which distinguished previous editions remain, making this essential
reading for all students of international law whether they be at undergraduate level, postgraduate
level or professional lawyers.
THIS BOOK COVERS: Nature, Origin and Basis of International Law; Relation between
International Law and State Law; State in General and Recognition; Law of Treaties; International
Humanitarian Law; The Settlement of International Disputes; The Use of Force; International
Institutions; State Territorial Sovereignty; State Responsibility; State Jurisdiction; Succession to
Rights and Obligations; The State and the Individual; War, Armed Conflicts and other Hostilities.
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International Law Notes by Aamir Mahar
PART VII
SOME USEFUL
INTERNATIONAL LAW
WEBSITES
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International Law Notes by Aamir Mahar
www.yale.edu/lawweb/avalon/avalon.htm
TREATIES
http://untreaty.un.org/
www.virtual-institute.de/en/wcd/wcd.cfm
www.jura.uni-duesseldorf.de/rave/e/englhome.asp
www.un.org/law/ilc/
www.uncitral.org/en-index.htm
www.gksoft.com/govt/en/
www.oefre.unibe.ch/law/icl/index.html
www.hmso.gov.uk/stat.htm
http://jurist.law.pitt.edu/world/index.htm
NATIONAL CASES
www.courtserve2.net/index.htm
www.bailii.org
http://supct.law.cornell.edu/supct/index.php
www.un.org/Depts/los/index.htm
www.oceanlaw.org/
INTERNATIONAL INSTITUTIONS
www.uia.org/extlinks/pub.php
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