INTA 641

INTERNATIONAL LAW

TEACHING NOTES FOR:

 LEGON CENTRE FOR INTERNATIONAL AFFAIRS AND

DIPLOMACY (LECIAD)

 GHANA ARMED FORCES COMMAND & STAFF

COLLEGE

 FACULTY OF LAW

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TOPIC 1. The Context and Nature of International Law

Most of the definitions are Statist and Rule-Oriented. For example:

PCIJ, predecessor to the ICJ defined it in the Case of S.S. Lotus:

“International law governs the relations between independent states. The

rules of law binding upon states therefore emanate from their own free will
as expressed in conventions or by usages generally accepted as expressing
principles of law and established in order to regulate the relations between
these co-existing independent communities or with a view to the
achievement of common aims”.

(1927) PCIJ, ser A No. 10, at 18.

J. Brierly, The Law of Nations, defined it as:

“The Law of Nations or international law may be defined as the body of

rules and principles of action which are binding upon civilised states in their
relations with one another”.

Marjory Whitman, Digest of International Law, a leading US Department of State

publication reporting contemporary US international law theory and practice
defined it as:

“International law is the standard of conduct, at a given time, for states and
other entities subject thereto. It comprises the rights, privileges, powers and
immunities of states and entities invoking its provisions, as well as the
correlative fundamental duties, absence of rights, liabilities, and disabilities.
International law, is more or less in a continual state of change and
development. In certain of its aspects the evolution is gradual; in others it is
avulsive. International law is based largely on custom, e.g. on practice, and
whereas certain customs are recognised as obligatory, others are in
retrogression and are recognised as non-obligatory, depending upon the
subject matter and its status at a particular time”.

Gregory Tunkin, renowned former Soviet scholar, jurist and diplomat defined
international law as follows:

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 “Contemporary general international law can be defined as the aggregate of
norms which are created by agreement between states of different social
systems, reflect the concordant wills of states and have a generally
democratic character, regulate relations between them in the process of
struggle and co-operation in the direction of ensuring peace and peaceful co-
existence and freedom and independence of peoples, and are secured, where
necessary, by coercion effectuated by states individually or collectively”.

Chinese scholars espouse the similar views of international law, except that they
differ on the meaning and legal implications of peaceful co-existence.

Oppenheim defined it as:

“International law is the body of rules which are legally binding on states in
their intercourse with each other. These rules are primarily those, which
govern the relations of states, but states are not the only subjects of
international law. International organisations, and to some extent also,
individuals may be subjects of rights conferred and duties imposed by
international law”.

Other scholars deny the legal nature of international law. For example:

John Austin, famous English jurist, in his book The Province of Jurisprudence
Determined published in the early 19th Century categorised law into two types.
Namely “law properly so-called” or “positive law” and “law improperly so-called”
or “positive morality”.

He defined positive law or law properly so-called as “commands of a sovereign”.

A sovereign is defined as a person who received the habitual obedience of the
members of an independent political society and who, in turn, did not owe such
obedience to any other person. Austin examined law within the States and
concluded that it contained a command “issuing from a determinate sovereign that
is habitually obeyed by the citizenry”. Then looking at the interactions between
states, he concluded that there was no such habitually obeyed command. Hence he
called international law “positive morality”.
Dean Acheson, former US Secretary of State argued as follows:

“Much of what is called international law is a body of ethical distillation, and one
must take care not to confuse this distillation with law. We should not rationalise

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general legal policy restricting sovereignty from international documents
composed for specific purposes”.

H.L.A. Hart English scholar and jurist in his book Concept of Law defined law as
comprising primary rules of obligation, secondary rules of change and adjudication
as well as a unifying rule of recognition specifying sources of law, and providing
general criteria for the identification of its rules. According to Hart, international
law, like all undeveloped legal systems has only primary rules and lack secondary
rules and rule of recognition.

HISTORY / ORIGINS
The discipline can be traced to the 4th Millennium BC when, approximately in
3100 BC, a treaty was concluded between two Mesopotamian city-states. Also the
Romans has a concept JUS GENTIUM, a law of nations which was seen by Roman
legal philosophers as a law “common to all men”, a universal law that could be
applied by Romans to foreigners when the specific law of their own nation was
unknown or and where Roman law was deemed inappropriate. Later in the 17th
Century a Dutch jurist Hugo Grotius (seen a s the father of modern international
law) argued that the law of nations also established legal rules that bound the
sovereign states of Europe, then just emerging from Medieval society, in their
relations with one another. His book The Law of War and Peace, 1625, is widely
acknowledged as the most important work in founding the modern discipline of the
law of nations. In 1789, the English jurist, Jeremy Bentham renamed our subject
International Law.

WHAT IS THE BASIS OF OBLIGATION IN INTERNATIONAL LAW?

1. Consent of states

2. Customary practice

3. Natural law or Natural reason

4. The will or the consensus of the international community

CHALLENGES FOR CONTEMPORARY INTERNATIONAL LAW

1. Impact of new technology

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2. Division of the world into global and regional blocs

3. The existence of a third and arguably fourth world of numerous newly

emerged states, undeveloped economically and technologically, and
sometimes having unstable governments

4. International law is also being called upon to find new rules to govern new
fields such as:

(a) scientific research

(b) regulation of activities in the upper atmosphere and in the cosmos
(c) protection and control of the environment
(d) controlling the growth of the world population
(e) dealing with transborder flow of computer data
(f) Exploration and exploitation of the seabed resources beyond the limits
of national jurisdiction.

CHALLENGES FOR THE INTERNATIONAL COMMUNITY

Assuming there is a thing such as an international community, take a look at these

4 subheadings and draw your own conclusions on how the community has fared
under each heading:

1. Management of complexity---meaning how to deal with the implications of

interdependence.

2. Containment of conflict within tolerable limits---meaning how to build and

respect procedures and consensus prohibiting the aggressive use of force.

3. The promotion of decency in the world---meaning reducing or eradicating

poverty, disease and misery and enhancing the quality of life for all.

4. The avoidance of catastrophe---meaning dealing with weapons of mass

destruction and even certain kinds of epidemiological threats.

TOPIC 2 The Sources of International Law

Just as rules within Ghana may be considered ‘law’ only if they emanate from the
proper source, i.e., Acts of Parliament, the common law, etc., similarly the rules of
international law are valid only if they emanate from accepted sources. As there is

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no international parliament empowered to legislate, or any international common
law established by international courts, how are these rules of international law
created?

What is meant by ‘Sources’ of international law? Sources are used on three levels.
First, the ‘sources’ of international law explain why the rules of the international
legal system are properly regarded as rules of law. Second, ‘sources’ means the
methods by which those rules of law are created. Third, ‘sources’ refer to the way
in which the specific rights or obligations the rules of law stipulate can be
identified.

Article 38 of the Statute of the International Court of Justice provides as follows:

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 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 nations;
(d) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.
2. This provision shall not prejudice the power of the Court to decide a case ex
aequo et bono, if the parties agree thereto.

Article 38(1) may not be exhaustive; it is merely an indication to the Court as to

the sources it may use. With the exception of judicial decisions and the writings of
jurists, which are described as ‘subsidiary’ means, the list is not hierarchical.

59. The decision of the Court has no binding force except between the parties
and in respect of that particular case.

The Court will, though, consider each source in turn when reaching a decision in
an individual case. It has been argued that judicial decisions and the writings of
jurists are not sources of international law in themselves, but merely evidence of
what those rules are; and that the only true source of general international law is
custom, as treaties are binding only when accepted by states.

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TREATIES

Vienna Convention on the Law of Treaties 1969

Article 2 Use of Terms
1. For the purposes of the present Convention
(a) ‘Treaty’ means an international agreement concluded between States
in written form and governed by international law, whether in a single
instrument or in two or more related instruments and whatever its
particular designation.

In the Case concerning Maritime Delimitation and Territorial Questions between

Qatar and Bahrain (Qatar v. Bahrain) (Jurisdiction – First Phase) ICJ Rep 1994
112, International Court of Justice

Facts of the Case

The dispute related to competing claims of sovereignty over islands, shoals and
maritime areas between these two Gulf States. The first aspect of the dispute to be
considered by the Court was whether it had jurisdiction to decide the case. The
basis of jurisdiction revolved around whether exchanges of letters between the
heads of each State – by which it was agreed to submit the dispute to the Court –
were treaties and so binding in international law. The court held that it had
jurisdiction. The parties agreed that the exchanges of letters of December 1987
constitute an international agreement with binding force in their mutual relations.
Bahrain however maintained that the Minutes of 25 December 1990 were no more
than a simple record of negotiations, and did not rank as an international
agreement, and could therefore, not serve as a basis for the jurisdiction of the
Court.

The Court stated as follows:

“The Court would observe, in the first place, that international agreements
may take a number of forms and be given a diversity of names [see] Article
2, paragraph (1)(a), of the Vienna Convention on the Law of Treaties of 23
May 1969”… Accordingly, and contrary to the contentions of Bahrain, the
Minutes are not a simple record of a meeting, they do not merely give an
account of discussions and summarise points of agreement and
disagreement. They enumerate the commitments to which the Parties have
consented. They thus create rights and obligations in international law for
the Parties. They constitute an international agreement.”

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 “The Court concludes that the Minutes of 25 December 1990, like the
exchanges of letters of December 1987, constitute an international
agreement creating rights and obligations for the Parties”.

For the purposes of a discussion on treaties as sources of international law, we

must note the following:

 Every state has the capacity to enter into and conclude treaties (Art. 34)
 Every treaty in force is binding upon the parties to it and must be performed by
them in good faith (Art. 26) [Expressed in Latin as Pacta sunt servanda]
 A treaty does not create either obligations or rights for a third state without its
consent (Art. 34).

[Refer of the Vienna Convention on the Law of Treaties of 23 May 1969]

CUSTOM

Customary law is found in primitive legal systems where no formal method of law
creation and enforcement exists. In these societies rules develop which have the
support of the bulk of the population. Over time, a pattern of behaviour will
crystallise into a rule of customary law. International law, as a primitive legal
system without formal means of making or enforcing laws, traditionally has relied
heavily on customary international law, although increasingly the international
community relies upon treaties, as custom is slow to react to change or new
circumstances.
Customary international law derives from the practice of states. State practice
means any act or statement by a State from which views about customary law can
be inferred; it includes physical acts, claims, declarations, national laws, national
judgements and omissions.

A State is not bound by a customary rule if it has consistently opposed that rule
from its inception. [Called principle of Persistent Objector] See Anglo-Norwegian
Fisheries Case, 1951 ICJ Rep 116 [Reproduced in Harris, 5th Ed. p.375, and
discussion at Harris p. 42-3]. However, a new State is bound by rules, which were
established before it became independent.

Special or Regional customs are rules binding as between States in a particular

geographic area. See: Asylum Case (Colombia v. Peru), ICJ Rep 1950 266
[Reproduced in Harris, 5th Ed. p.24]

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In the Asylum Case, the Court found against the existence of local custom because
of lack of evidence. However, the possibility of local custom was confirmed in the
Rights of Passage Over Indian Territory Case, ICJ Rep 1960, 6, where the Court
observed that:

“With regard to Portugal’s claim of a right of passage as formulated by it on

the basis of local custom, it is objected on behalf of India that no local
custom could be established between only two states. It is difficult to see
why the number of states between which a local custom may be established
on the basis of long practice must necessarily be larger than two. The Court
sees no reason why long continued practice between two States accepted by
them as regulating their relations should not form the basis of mutual rights
and obligations between the two states”.

State practice may give rise to customary international law when that practice is
uniform, consistent and general, and if it is coupled with the belief that the practice
is obligatory rather than habitual.

Elements of Custom

The Statute of the ICJ refers to two requirements for the existence of custom.
These are:

 General practice of states

 Accepted as law or Opinio juris sive necessitatis [simply as Opinio juris]

Manley O. Hudson in his working paper for the International Law Commission in
1950, UN Doc. A/CN.4/16 Mar. 3, 1950, at 5 stated as follows:

…. The emergence of a principle or rule of customary international law would

seem to require presence of the following:
(a) concordant practice by a number of States with reference to a type of
situation falling within the domain of international relations,
(b) continuation or repetition of the practice over a considerable period of
time,
(c) conception that the practice is required by, or is consistent with
prevailing international law;
(d) and general acquiescence in the practice by other States.

Of course the presence of each of these elements is to be established as a fact by a

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competent international authority”.

Class should examine the usefulness of Hudson’s criteria as a formula for the
determination of custom.

State Practice
State practice may be considered as the actions of states, both how they react to the
actions of other states and general statements as to the law by states. Thus in
seeking to identify the relevant state practice, we may wish to consider the
following:

(a) Actions of states as reported in newspapers, journals and official

publications;
(b) Publicised views of governments found in documents generated by
states, for example diplomatic correspondence, policy statements,
press releases and opinions of legal advisers,
(c) Official responses to international law, for example foreign office
documents in response to treaties, General Assembly drafts and
whether the state votes for or against an international resolution /
measure,
(d) Decisions of municipal courts as evidence of government’s view of
international law,
(e) Participation by the state in international agreements.

Opinio Juris

This element distinguishes rules of international law from rules of convenience or

comity — which is a rule based upon consistent state practice, which is not
accompanied by a feeling of legal obligation. For example red-carpet treatment of
visiting foreign heads of state, the greeting of foreign dignitaries by equivalent
status individuals, e.g., a head of state to be greeted by the head of state, the
Foreign Minister by the Foreign Minister, etc. Failure to comply with the rule may
cause offence, but does not break any rule.

In the North Sea Continental Shelf Cases, (Federal Republic of Germany v.

Denmark; Federal Republic of Germany v. The Netherlands, 1969, ICJ Rep 3
[Reproduced in Harris 5th Ed. p. 27], the ICJ noted:

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 “Not only must the acts concerned amount to a settled practice, but they
must also be such…. as to be evidence of a belief that this practice is
rendered obligatory by the existence of a rule of law requiring it. The need
for such a belief …is implicit in the very notion of the opinio juris sive
necessitatis… The frequency or even habitual character of the acts is not in
itself enough. There are many international acts, e.g., in the field of
ceremonial and protocol, which are motivated only by considerations of
courtesy, convenience or tradition, and not by any sense of legal duty”.

GENERAL PRINCIPLES OF LAW

Generally accepted that where the two primary sources are unable to provide a
solution, a court should look to general principles. In an international dispute, the
fact that there are no provisions of a treaty or of customary international law
directly applicable to a given situation does not necessarily mean that there exist a
gap in the law and that, there is therefore no room for the application of
international law.

But what are general principles of law recognised by civilised states? According to
Lauterpacht “they are those principles of law, private and public, which
contemplation of legal experience of nations leads one to regard as obvious
maxims of jurisprudence of a general and fundamental character – such as the
principle that no one can be a judge in his own cause, that a breach of legal duty
entails the obligation of restitution or reparation”. See Chorzow Factory Case,
1928 PCIJ Ser A No. 17 at 29 where the Court stated that “it is a general
conception of law that every violation of an engagement involves an obligation to
make reparation”.

OTHER SOURCES

Other sources are stated to be “subsidiary means for the determination of rules of
law”. These are:

Judicial Decisions

Judicial precedence is the practice (mostly among Common Law jurisdictions)

whereby courts follow previous decisions. Precedence could be of binding or

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persuasive force, depending on the hierarchy of court, etc. According to Article 59
of the Statute of the ICJ that Court’s decisions have no binding force except as
between the contending parties and in respect of the case under consideration.

Judicial decisions, as a source of international law need not be rendered solely by

international tribunals. Decisions of municipal courts are also cited especially
where issues of international law are adjudicated in domestic courts. For example
the Ghanaian cases of Amon v. Kartz (1976) 2 GLR 121 and Kwarteng v. Sackey
& Another [1984-1986] GLR 19.

The Teachings of Highly Qualified Publicists

These are international legal scholars and practitioners who through diligent
research and the reduction of such research to a written test that fairly reflect
international practice. Such product becomes a subsidiary means of determining
the rule of law. See the Pacquete Habana, 175 U.S. 677, 700, where the United
States Supreme Court stated as follows:

“International law is part of our law, and must be ascertained and

administered by the courts of justice of appropriate jurisdiction, as often as
questions of right depending upon it are duly presented for their
determination. For this purpose, where there is no treaty, and no controlling
executive act or judicial decision, resort must be had to the customs and
usages of civilised nations; and as evidence of these, to the works of jurists
and commentators, who by years of labor, research and experience, have
made themselves peculiarly well acquainted with the subjects of which they
treat. Such works are resorted to by judicial tribunals, not for the
speculations of their authors concerning what the law ought to be, but for
trustworthy evidence of what the law really is”.
United Nations Resolutions

General Assembly resolutions are with a limited exception, of no binding effect.

According to Article 10 of the UN Charter the GA is empowered to make only
recommendations to UN Members or to the Security Council. For example if the
GA elects the Secretary General or when it apportions the expenses of the
Organisation, Members are legally bound.

However, Members are mandated by Article 25 to “accept and carry out the
decisions of the Security Council in accordance with the Charter”.

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TOPIC 3 Subjects of International Law

States

If a State, group or body can be said to have rights and duties under international
law, then it can be said to have ‘international personality’ or to be a ‘subject’ of
international law.

A subject of international law is an entity that is capable of possessing international

rights and duties, and that it has capacity to maintain its rights by bringing
international claims. [See Reparations for Injuries Suffered in the Service of the
United Nations Case, ICJ Rep 1949 1744]. Since international law is primarily
concerned with the rights and duties of states, it is necessary to have a clear idea of
what a state is, for the purposes of international law.

The 1933 Montevideo Convention on Rights and Duties of States provides in

Article 1:
“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.

We will consider these before discussing additional criteria.

Defined Territory

The control of territory is the essence of a state. In the Island of Palmas Case
[dispute between The Netherlands and the United States over an island about half
way between the Philippines and the now Indonesian Nanusa Islands], Max Huber,
the Sole Arbitrator noted as follows:

“Territorial sovereignty involves the right to display the activities of a state.

This right has a corollary duty: the obligation to protect within the territory
the rights of other states, in particular their right to integrity and inviolability
in peace and war, together with the rights which each state may claim for its
nationals in foreign territory”.

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Geographical areas separated by borderlines from other areas and united under a
common legal system define the concept of territory. It includes the air space
above the land (although there is no agreement on the precise upper limit) and the
earth beneath it, in theory reaching the centre of the globe. It also includes up to
twelve miles of the territorial sea adjacent to the coastline.

The frontiers of a state need not be absolutely certain. Many states have boundary
disputes with their neighbours. What is important is for a state to consistently
control a sufficiently identifiable core of territory. When Israel was recognised as
a state in 1948 its boundaries were unsettled. It is doubtful if the boundaries are
now settled. In the case of Deutsche Continental Gas-Gesellschaft v. Polish State
(1929), the German-Polish Mixed Arbitral Tribunal stated:

“In order to say that a State exists and can be recognised as such it is enough
that its territory has sufficient consistency, even though its boundaries have
not yet been accurately delimited”.

In the North Sea Continental Shelf Cases, ICJ Rep 1969, 3, the International Court
of Justice held:

“The appurtenance of a given area, considered as an entity, in no way

governs the precise determination of its boundaries, any more than
uncertainty as to boundaries can affect territorial rights. There is for
instance no rule that the land frontiers of a State must be fully delimited and
defined, and often in various places and for long periods they are not”.

Also there is no lower or upper limit to the size of a state’s territory.

Population

The criterion of ‘permanent population’ is connected with that of territory and

constitutes the physical basis for the existence of a state. However, the fact that
large numbers of nomads are moving in and out of the country, as in the case of
Somalia, is in itself no bar to statehood, as long as there is a significant number of
permanent inhabitants.

Like territory, the size of the population may be very large or very small. Reunion
and Liechtenstein have around 20,000 inhabitants. Nauru for example has less
than 10,000 inhabitants and is only eight square miles in area.

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Effective control by a government

There are two aspects of this criterion—one internal and the other external.
Internally, the existence of a government implies the capacity to establish and
maintain a legal order in the sense of constitutional autonomy. Externally, it
means the ability to act autonomously on the international level without being
legally dependent on other states.

The mere existence of a government, however, in itself does not suffice, if it does
not have effective control. In 1920, the International Committee of Jurists
submitted its Report on the status of Finland and found that it had not become a
sovereign state in the legal sense:

“Until a stable political organisation had been created, and until the public
authorities had become strong enough to assert themselves throughout the
territories of the State without the assistance of foreign troops. It would
appear that it was in May 1918, that the civil war ended and that the foreign
troops began to leave the country, so that from that time onwards it was
possible to re-establish order and normal political and social life, little by
little”.

Thus the ‘State of Palestine’ declared in 1988 by Palestinian organisations was not
a state, due to lack of effective control over the claimed territory. Note, however,
that the fact that a state is temporarily deprived of an effective government, as may
happen in a civil war or some other upheaval, does not mean a state has ceased to
exist. For example Somalia during the civil war.

Traditionally international law had not been concerned with the nature of the
internal political structure of a country. International law was only interested in
the fact that a government must have established itself in fact. Revolutions and
overthrow of governments became acceptable; the only relevant question was
whether they are successful.

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Capacity to enter into relations with other states

This criterion refers to the independence from the authority of any other state and hence
the capacity under its national law to conduct relations with other states. In the Austro-
German Customs Union Case PCIJ Rep, Ser. A/B. No. 41 (1931), the Court stated as
follows:

“Restrictions upon a State’s liberty, whether arising out of ordinary

international law or contractual engagements, do not as such in the least
affect its independence. As long as these restrictions do not place the State
under the legal authority of another State, the former remains an independent
State however extensive and burdensome those obligations”.

Some scholars do not find this last criterion necessary. For example Guinea-
Bissau was recognised in the 1970s by the United States and by Germany on the
basis only of the first three criteria.

Additional criteria?

State must not have been established in violation of the principle of self-
determination; through an illegality, e.g. Genocide, human rights violations, or use
of force.

International Organisations

Article 104 of the United Nations Charter provides as follows:

The Organisation shall enjoy in the territory of each of its Members such
legal capacity as may be necessary for the exercise of its functions and the
fulfilment of its purposes.

Article 105 of the Charter provides:

1. The Organisation shall enjoy in the territory of each of its Members
such privileges and immunities as are necessary for the fulfilment of its
purposes.
2. Representatives of the Members of the United Nations and officials of
the Organisation shall similarly enjoy privileges and immunities as are
necessary for the independent exercise of their functions in connection with
the Organisation.

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Cite Reparations for Injuries Suffered in the Service of the United Nations Case
ICJ Rep 1949 174,

Facts

Following the assassination of Count Bernadotte, a UN official, in Jerusalem in

1948, the General Assembly requested the ICJ to give an Advisory Opinion on
whether the United Nations has ‘as an Organisation, the capacity to bring an
international claim against the responsible de jure or de facto government with a
view to obtaining the reparation due in respect of the damage caused (a) to the
United Nations, (b) to the victim or the persons entitled through him?’

Held:
The Court unanimously, in respect of (a) that the UN had such capacity vis a vis
Members of the Organisation and non-members; and similarly by 11:4 in respect
of question (b).
The Court made certain pronouncements that are worth citing here.

“The subjects of law in any legal system are not necessarily identical in their
nature or the extent of their rights, and their nature depends upon the needs
of the community. Throughout its history, the development of international
law has been influenced by the requirements of international life, and the
progressive increase in the collective activities of States has already given
rise to instances of action upon the international plane by certain entities,
which are not states. This development culminated in the establishment in
June 1945 of an international organisation whose purposes and principles are
specified in the Charter of the United Nations. But to achieve these ends the
attribution of international personality is indispensable”.

“In the opinion of the Court, the Organisation was intended to exercise and
enjoy, and is in fact enjoying, functions and rights which can only be
explained on the possession of a large measure of international personality
and capacity to operate on the international plane”.

“Accordingly, the Court has come to the conclusion that the Organisation is
an international person”.

In the International Tin Council Case [1989] Ch 72, the British Court of Appeal
held that:

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 “There can be no doubt that the EEC has legal personality in international
law. This is provided in the EEC Treaty, and is therefore part of the law of
the member states. No doubt the EEC would also be recognised as a legal
entity under the laws of non-members…. There is equally no doubt that the
EEC exercises powers and functions, which are analogous to those of
sovereign states.

The Court mentioned sending and receiving permanent missions, concluding

treaties with sovereign states, and concluded as follows:
“On the other hand, the EEC is not a state in that it has no sovereignty over
territory as such and no nationals or citizens”.

Article 4 of the Rome Statute of the International Criminal Court, adopted on July,
17, 1998 provides as follows:

The Court shall have international legal personality. It shall also have such
legal capacity as may be necessary for the exercise of its functions and
fulfilment of its purposes.

Individuals

Originally, international law was a system of rules governing the relations between
sovereign states, and many of the rules of the system still reflect this. In addition,
most states have been slow to allow individuals to have any rights and duties
outside their own legal systems. However, in recent years, the development of s
substantial body of human rights law and the development of personal criminal
responsibility have gone some way to extend the scope of international law beyond
its traditional areas.

Contemporary international has accorded individuals two distinct capacities:

(a) they are accorded substantive rights in international law, and
(b) they may also be accorded the procedural capacity to bring proceedings to
enforce those rights without having to rely on states to do so for them.

Look at the following 2 Articles:

(1) Article 34 of the Statute of the International Court of Justice [provides only
States may be parties in cases before the Court].

(2) Article 44 of the European Convention for the Protection of Human Rights

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 and Fundamental Freedoms. [Provides only the High Contracting Parties
and the European Commission shall have the right to bring a case before the
Court].

Compare with:
(1) Protocol 9 to the European Convention for the Protection of Human Rights
and Fundamental Freedoms Broadening the Access to the Court for
Individuals, 30 ILM 693 (1991). [For those states that have ratified the
Protocol, Article 3 of the Protocol amends Article 44 above-mentioned to
allow persons, non-governmental organisations or groups of individuals who
have submitted a petition to the Secretary General of the Council to bring a
case before the Court].

(2) Articles 1 and 2 of the Optional Protocol to the International Covenant of

Civil and Political Rights (1966) which provides:

Article 1
A State Party to the Covenant that becomes a party to the present Protocol
recognises the competence of the Committee to receive and consider
communications from individuals subject to its jurisdiction who claim to be
victims of a violation by that State Party of any of the rights set forth in the
covenant.

Article 2
Subject to the provisions of Article 1, individuals who claim that any of their
rights enumerated in the Covenant have been violated and who have
exhausted all available domestic remedies may submit a written
communication to the Committee for consideration.

(3) Article 25 of the Rome Statute of the International Criminal Court, adopted
on July 17, 1998, which provides as follows:

(1) The Court shall have jurisdiction over natural persons pursuant to this
Statute.
(2) A person who commits a crime within the jurisdiction of this court
shall be individually responsible and liable for punishment in
accordance with this Statute.

19
CASES

Attorney-General of Government of Israel v. Eichmann 36 ILR (1961) 5, District

of Jerusalem

Eichmann, former head of the Jewish Office in Germany during the Second World
War, was abducted from Argentina in 1960 and brought to Israel to face charges of
war crimes, crimes against humanity and crimes against the Jewish people. In
Israel, prosecution under the Nazi and Nazi Collaborators (Punishment) Law 1951.
Defence council submitted, inter alia, since Eichmann was a German national, he
could not be subject to Israeli criminal jurisdiction. The Court held as follows:

“The abhorrent crimes defined in the Law are not crimes under Israel law
alone. These crimes, which struck at the whole of mankind and shocked the
conscience of nations, are grave offences against the law of nations itself
(delicta juris gentium). Therefore, so far from international law negating or
limiting the jurisdiction of countries with respect to such crimes,
international law is, in the absence of an International criminal Court, in
need of the judicial and legislative organs of every country to give effect to
its criminal interdictions and to bring the criminals to trial. The jurisdiction
to try crimes under international law is universal”.

In re Piracy Jure Gentium [1934] AC 586 Privy Council

Following the arrest of Chinese nationals on the high seas, the Judicial Committee
of the Privy Council was asked to consider whether actual robbery was an element
of the offence of piracy jure gentium. The Court held as follows:

“With regard to crimes as defined by international law, that law has no

means of trying or punishing them. The recognition of them as constituting
crimes, and the trial and punishment of the criminals, are left to the
municipal law of each country. But whereas according to international law
the criminal jurisdiction of municipal law is ordinarily restricted to crimes
committed on its terra firma or territorial waters or its own ships, and to
crimes by its own national wherever committed, it is also recognised as
extending to piracy committed on the high seas by any national on any ship,
because a person guilty of such piracy has placed himself beyond the
protection of any State. He is no longer a national, but “hostis humani
generis” and as he is justiciable by any State anywhere”.

20
RECOGNITION OF STATES AND GOVERNMENTS

A clear distinction must be made between recognition of a state and the

recognition of a government. The recognition of a state is an acknowledgement
that the entity fulfils the criteria of statehood. Recognition of a government is an
acknowledgement that the regime in question is in effective control of a state.

The basic distinction is that whereas recognition of a government necessarily

implies accepting the statehood of the entity which the regime is governing,
recognition of a state can be accorded without also accepting that a particular
regime is the government of that state.

Theories of Recognition

Constitutive Theory
A state or government does not come into existence until it is recognised. It other
words, recognition thus has a constitutive effect since it is a necessary condition
for the ‘constitution’ or establishment or creation of the state or government in
question. An entity is therefore, not a state until recognised by other states.

Declaratory Theory
According to this theory, recognition has no legal effects. The existence of a state
or government is a pure question of fact, and recognition is merely an
acknowledgement of the facts.

The prevailing view, however, is that recognition is declaratory and does not create
a state or government. Article 3 of the Montevideo Convention on the Rights and
Duties of States provides as that:

The political existence of the State is independent of recognition by other

states. Even before being recognised, the state has the right to defend its
integrity and independence.

Legal Effects of Recognition in domestic law

a) The courts of recognising state will apply the laws of the recognised state
and give effect to its sovereign acts;
b) National courts of the recognising state will accept the right of the
recognised state to sue or claim other rights of a governmental nature.

21
Recognition of Governments

1. Tinococo Arbitration (Great Britain v. Costa Rica, RIAA (1923) 369

2. Luther v. Sagor [1921[ 1 KB 456
3. Sierra Leone Telecommunications Limited V. Barclays Bank PLC (English
High Court, Queen’s Bench Division, 6 February, 1998).

In the last case the High Court was called upon to determine which was the
government of Sierra Leone—the military junta which came to power in May 1997
following a coup or the democratically elected Tejan Kabah government in exile.
The Court considered the evidence of dealing between the Executive of the United
Kingdom and the rival regimes in Sierra Leone. The Court concluded as follows:

“It was clear that the military junta in Sierra Leone was not the constitutional
Government. The evidence showed that it was not in control of the country
outside the capital, Freetown, and that forces loyal to the exiled Government
controlled larger parts of the country. In those areas under the control of the
military junta there is nothing resembling law and order. The United
Kingdom Government had no dealings with the military junta and continued
to deal, on a government-to-government basis, with the exiled Government.
The United Kingdom had imposed sanctions and the coup had been
condemned by the Commonwealth, OAU and the EC. Accordingly, the
military junta was not the Government of Sierra Leone. The new directors
were not validly appointed and the affairs of Sierratel continued to be
managed by the original board of directors. The Bank was therefore obliged
to honour payment instructions given by the original signatories under the
mandate”.

STATE SUCCESSION

This refers to the branch of international law dealing with the legal consequences
of a change of sovereignty over territory. Change of sovereignty may take
different forms. For example:
a) States may lose all of its territory;
b) States may lose part of its territory;
c) Loss of territory may lead to the enlargement of one or more existing states,
d) Loss of territory may lead to the creation of one or more new states.
Dismemberment (Soviet Union, Yugoslavia, Checkoslovakia, Eritrea);
Unification (Germany, Yemen)

22
The rule are complicated, and at times unsettled. However, the following may be
noted.

Succession to Treaties

In respect of treaties establishing boundaries, automatic succession to rights and

obligations occurs. Such treaties are said ‘to run with the land’ and unaffected by
changes in sovereignty over the territory. This finds expression in the uti
possidetis principle. In the Frontier Dispute Case (Burkina Faso v. Mali) ICJ Rep
1986, 554, the Court stated:

There is no doubt that the obligation to respect pre-existing international frontiers

is the event of a State succession derives from a general rule of international law,
whether or not the rule is expressed in the formula of uti possidetis.

For other types of treaties the rule varies depending on the nature of the territorial
change. When a state loses territory, it loses its rights and obligations under
treaties that used to apply to the lost territory.

New states that came into being through decolonisation

Traditional rule has been that such a new state is under no obligation to succeed to
a treaty, if it does not want to do so. In other words, a new state can start life with
a ‘clean slate’ or tabula rasa. Hence this principle is called the tabula rasa
doctrine. The basic rules to be noted are that:

A new state can succeed to a multilateral treaty, to which the predecessor was a
party, by notifying the depository that it regards itself as succeeding to the treaty.

A new state can succeed to a bilateral treaty, which its predecessor made with
another state, if both states agree expressly or by implication.

23
TOPIC 4 State Territory and Jurisdiction

Definition of Territory

From Topic 3, we noted that the control of territory is the essence of a state. In the
Island of Palmas Case [dispute between The Netherlands and the United States
over an island about half way between the Philippines and the now Indonesian
Nanusa Islands], Max Huber, the Sole Arbitrator noted as follows:

“Territorial sovereignty involves the right to display the activities of a state.

This right has a corollary duty: the obligation to protect within the territory
the rights of other states, in particular their right to integrity and inviolability
in peace and war, together with the rights which each state may claim for its
nationals in foreign territory”.

Geographical areas separated by borderlines from other areas and united under a
common legal system define the concept of territory. It includes the air space
above the land (although there is no agreement on the precise upper limit) and the
earth beneath it, in theory reaching the centre of the globe. It also includes up to
twelve miles of the territorial sea adjacent to the coastline.

How does a State acquire its Territory?

Occupation
This refers to the acquisition of terra nullius, that is, territory, which immediately
before occupation belonged to no other state, or territory, which belonged to a state
but may have been abandoned prior to occupation. In the Western Sahara Case
ICJ Rep 1975, 12, the Court was asked to decide whether Western Sahara, at the
time of colonisation by Spain was a territory belonging to no one (terra nullius)?
The Court answered the question in the negative. It stated:
“Whatever differences of opinion there may have been among jurists, the
State practice of the relevant period indicates that territories inhabited by
tribes or peoples having a social and political organisation were not regarded
as terra nullius. It shows that in the case of such territories the acquisition
of sovereignty was not generally considered as effected unilaterally through
“occupation” of terra nullius by original title but through agreements
concluded with local rulers”.

Territory is occupied when placed under effective control. What will pass as
effective control is relative. It varies according the nature of the territory in

24
question, and whether other states have made adverse claims. In the Eastern
Greenland Case (1933) PCIJ Ser A/B 53, the Court stated:

“Another circumstance which must be taken into account is the extent to

which the sovereignty is also claimed by some Power. In most of the cases
involving claims to territorial sovereignty which have come before an
international tribunal, there have been two competing claims to sovereignty,
and the tribunal has had to decide which of the two is the stronger …in many
cases the tribunal has been satisfied with very little in the way of actual
exercise of sovereign rights, provided that the other State could not make out
a superior claim. This is particularly true in the case of claims to
sovereignty over areas in thinly populated or unsettled countries”.

Cession
This refers to the transfer of territory, usually by treaty, from one state to another.
As in domestic law of transfers of title to land, if there were defects in the title of
the ceding state, the title of the state to which the territory was ceded will suffer the
same defects. This finds expression in the Latin maxim nemo dat quod non habet
(nobody gives what he does not have). See the Island of Palmas Case (The
Netherlands v. United States) 2 RIAA (1928) 829 Huber Sole Arbitrator. The
dispute related to sovereignty over the Island of Palmas an island about half way
between the Philippines and the now Indonesian Nanusa Islands]. The United
States’ claim to the Island was derived from Spain by way of cession under the
Treaty of Paris of 1898, and they claimed, as successor to Spain. The Netherlands
relied among others, on the exercise of acts of sovereignty since 1700. The
Arbitrator upheld The Netherlands’ title to the Island. The Court stated as follows:

“The titled alleged by the United States of America as constituting the

immediate foundation of its claim is that of cession, brought about by the
Treaty of Paris, which cession transferred all rights of sovereignty which
Spain may have possessed concerning the Island of Palmas. It is evident
that Spain could not transfer more rights than she herself possessed”.

Prescription
This mode of acquisition is also based on effective control over territory,
accompanied by acquiescence on the part of the losing state. The difference
between occupation and prescription is that prescription is the acquisition of
territory, which belonged to another state, whereas occupation is acquisition of a
terra nullius. In the Island of Palmas the Sole Arbitrator stated:

25
 “There is moreover no evidence which would establish any act of display of
sovereignty over the island by Spain or another Power, such might counter-
balance or annihilate the manifestations of Netherlands sovereignty. As to
third Powers, the evident submitted to the Tribunal does not disclose any
trace of such action, at least from the middle of the 17 th century onwards.
These circumstances, together with the absence of any evidence of a conflict
between Spanish and Netherlands authorities during more than two centuries
as regards Palmas, are indirect proof of the exclusive display of Netherlands’
sovereignty”.

Conquest
Territory could be ceded by a state defeated in a war and the cession shall operate
to confer a valid title to the victorious state. Such acquisition of territory shall be
deemed to be effective only when the war has ended. However, an aggressor state
cannot acquire territory by conquering another state and forcing it to sign a treaty
of cession.

Presently conquest would not be a legal mode of territorial acquisition. However,

this position does not invalidate earlier acquisitions made by force, when at the
time of such acquisitions they were legal. See the following:

a) Article 2 (4) of the UN Charter which provides:

“All Members shall refrain in their international relations from the threat or
use of force against the territorial integrity or political independence of any
State, or in any other manner inconsistent with the Purposes of the United
Nations”.

b) The Declaration on Principles International Law concerning Friendly

Relations and Co-operation among States in Accordance with the Charter of
the United Nations, UNGA 24, October 1970, which provides:

“The territory of a State shall not be the object of acquisition by another

State resulting from the threat or use of force. No territorial acquisition
resulting from the threat or use of force shall be recognised as legal.

Nothing in the foregoing shall be construed as affecting:

a) Provisions of the Charter or any international agreement prior to the
Charter regime and valid under international law; or
b) The powers of the Security Council under the Charter.

26
Following Iraq’s annexation of Kuwait, the Security Council passed Resolution
662 (1990) adopted on 9 August 1990, which stated, among others:
1. Decides that annexation of Kuwait by Iraq under any form and whatever
pretext has no legal validity, and is considered null and void;
2. Calls upon all States , international organisations and specialised agencies
not to recognise that annexation, and to refrain from any action or dealing
that might be interpreted as an indirect recognition of the annexation;
3. Further demands that Iraq rescinds its actions purporting to annex Kuwait…

Note Government of the State of Eritrea and Government of the State of Yemen—
Arbitration Tribunal (October 9, 1998). Discusses territorial acquisition.

We discuss the Sea, Airspace and Outer space in subsequent lectures.

JURISDICTION
Having discussed how territory is acquired, we now turn to how a state exercises
legislative, executive and judicial activities over such territory. This exercise of
sovereignty is called jurisdictional sovereignty. Jurisdiction is either ‘prescriptive’
or ‘enforcement’. Prescriptive jurisdiction refers to a state’s ability to define its
own laws in respect of any mater that it chooses. Enforcement jurisdiction refers
to a state’s ability to enforce the laws it prescribes. We shall talk about the rules
and principles relating to the exercise of criminal jurisdiction.

Territorial principle
States claim jurisdiction over crimes committed in its territory irrespective of the
nationality of the perpetrators. Where a criminal act begins in one state and ends
in another, both states have jurisdiction. For example where a man shoots across a
border and kill someone on the other side. A state’s ‘territory’ for jurisdictional
purposes extends to its land and dependent territories, airspace, aircraft, territorial
sea, and for limited purposes, to its contiguous zone, continental shelf and
Exclusive Economic Zone (EEZ).
See Compania Naviera v. Steamiship ‘Cristina’ 1938 AC 485. In that case before
the English House of Lords, Lord Macmillan said:

“It is an essential attribute of the sovereignty of this realm, as of all

sovereign independent states, that it should possess jurisdiction over all
persons and things within its territorial limits and all causes civil and
criminal arising within these limits. This jurisdiction is exercised through
the instrumentality of the duly constituted tribunals of the land”.

27
Nationality principle
States have an inherent right to exercise jurisdiction over their own nationals
irrespective of the place where the relevant acts occurred. The nationality of an
individual is to be determined by the law of the state. International law only lays
down certain limits for states to prescribe which criteria are relevant for nationality
to be established. See the Nottebohm Case ICJ Rep 1955 4, where the Court stated
as follows:

“It is for every sovereign State to settle by its own legislation the rule
relating to the acquisition of its nationality, and to confer that nationality by
naturalisation granted by its own organs in accordance with that legislation.
Nationality serves above all to determine that the person upon whom it is
conferred enjoys the rights and is bound by the obligations which the law of
the State grants to or imposes on its nationals”.

Protective principle
States claim an inherent right to punish conduct prejudicial to their security when
committed by foreigners abroad. For example plots to overthrow its government,
forging its currency or breaking its immigration regulations. See Joyce v. Director
of Public Prosecutions [1946] AC 347. Joyce was an American citizen who
broadcast messages from Germany during World War II seeking to persuade the
Allies to surrender. He was convicted in the United Kingdom for high treason.
The Court, per Lord Jowitt stated:

“The second point of appeal was that in any case no English court has
jurisdiction to try an alien for a crime committed abroad. No principle of
comity demands that a state should ignore the crime of treason committed
against it outside its territory. On the contrary a proper regard for its own
security requires that all that crime, whether they commit it within or
without the realm should be amenable to its laws”.

In Attorney General of Israel v. Eichmann the Court stated:

“The State of Israel’s “right to punish” the accused derives, in our view,
from two cumulative sources: a universal source pertaining to the whole of
mankind), which vests the right to prosecute and punish crimes of this order
in every state within the family of nations; and a specific or national source,
which gives the victim nation the right to try any who assaults its existence.
This second foundation of criminal jurisdiction conforms according to the
protective principle”.

28
Passive Personality principle
This principle extends the nationality principle to apply to any crime committed
against a national of a state, wherever that national may be. This is a rarely used
ground. See United States v. Yunis (1988) F. Supp 896 below.

Universality principle
Universal jurisdiction is asserted irrespective of who commits the crime and where
it is committed. It depends solely on the nature of the offence committed, and is
exercised principally by the state which has apprehended the alleged offender. E.g.
piracy, genocide, war crimes and crimes against humanity. See Attorney-General
of Government of Israel v. Eichmann; and In re Piracy Jure Gentium. [Cited
under Topic 3—discussing individuals as subjects of international law]. See
also United States v. Yunis (1988) F. Supp 896 [involving highjacking and hostage
taking by a Lebanese national]. The Court held that:

“Thus the Universal and Passive Personality principles, together, provide

ample grounds for this Court to assert jurisdiction over Yunis. In fact,
reliance on both strengthens the basis for asserting jurisdiction. Not only is
the United States acting on behalf of the world community to punish alleged
offenders of crimes that threaten the very foundation of world order, but the
United States has its own interest in protecting its nationals”.

State Jurisdiction and persons apprehended in violation of international law

There are two views. British and South African courts have held that national
courts will decline to exercise jurisdiction when a defendant was secured and
brought before the courts in violation of international law. See State v. Ibrahim 30
ILM (1991) 888, extracted below.

The appellant, a South African citizen, was charged with treason. He had been
abducted from Swaziland and transported to South Africa, most likely by agents of
the South African government. This was violation of international law, being a
violation of the territorial integrity of Swaziland, although Swaziland had not made
an official protest. The appellant appealed against his conviction on the grounds
that the South African courts lacked jurisdiction because his appearance before
them was brought about by a violation of international law. The appeal was
allowed and the conviction set aside.

In R v. Horseferry Road Magistrates’ Court, ex parte Bennett [1993] All ER 138,

29
Bennett, a New Zealand citizen, was wanted in the UK in respect of allegations of
fraud. Bennett was located in South Africa and the UK police asked the South
African police to send him forcibly to the UK. This was done. The House of
Lords held that, if Bennett could prove his allegations [about how he was
apprehended and brought before the British court], there would have been an abuse
of the process because the manner by which he came before the UK courts would
have been a violation of international law and the rule of law.

The other view is reflected in two decisions from Israel and the United States. You
remember the famous case of Attorney-General of Government of Israel v.
Eichmann? Israeli Secret Service Agents abducted Eichmann from Argentina.
Argentina protested and Israel expressed its regret, but the Israeli court exercised
jurisdiction, holding that the manner in which the accused was brought before the
court was irrelevant. Note however, that the crimes for which Eichmann had been
charged gave rise to universal jurisdiction, as against crimes under national law.

The other case is United States v. Alvarez-Machain 31 ILM (1992) 902. In that
case, the appellant was a Mexican citizen. He was abducted from Mexico and
transported to the United Sates where he was charged with the kidnapping and
murder of a US Drug Enforcement Agent. The US Supreme Court held that even
though the abduction may have been a violation of international law (the territorial
integrity of Mexico), a US court could still exercise jurisdiction.

Immunities from national jurisdiction

As we noted under Topic 3, a subject of international law enjoys certain privileges
or rights, both in international and national law. One of the most important of
these is the immunity from legal process enjoyed by states and international
organisations and their representatives in the courts of other states. For the sake of
clarity, this immunity can be divided into state (or sovereign) immunity and
diplomatic and consular immunities. The first concerns foreign states as such,
while the second concerns immunities enjoyed by representatives of those states
and by international organisations and their representatives. We shall discuss these
immunities in subsequent lectures.

30
TOPIC 5 Individuals, Nationality and State Responsibility

Preliminary issues
From Topic 3 we noted that states have rights and duties under international law,
and as such they have ‘international personality’ or are ‘subjects’ of international
law.

We also noted that a subject of international law is an entity that is capable of

possessing international rights and duties, and that it has capacity to maintain its
rights by bringing international claims. [See Reparations for Injuries Suffered in
the Service of the United Nations Case, ICJ Rep 1949 1744].

Finally we noted that international law is primarily, concerned with the rights and
duties of states.

It follows from the above that a state must accept responsibility for its actions
which have an effect on other international legal persons. State responsibility,
therefore, arises from the violation by a state of an international obligation. That
obligation can be one of customary international law or a treaty obligation. The
enforcement of this responsibility is generally taken by state either on its own
behalf or on behalf of its injured nationals.

We shall proceed to examine state responsibility under two parts.

Part one will cover:

 Theories of state responsibility

 The Nature of state responsibility, attribution (imputability) of internationally
unlawful acts to the state
 The enforcement (including nationality of claims, exhaustion of local remedies
and defences to responsibility

Part 2 would cover the rules on the treatment of non-nationals, including

expropriation of assets owned by foreign nationals.

Theories of state responsibility

What is the basis of state responsibility? Two views have been expounded -- the
Risk or Objective Theory and the Fault or Subjective Theory. There is authority
supporting both views.

31
Risk or Objective Theory
According to the Risk theory, responsibility arises from the prohibited act alone.
In other words there is ‘strict liability’. See Caire Claim (France v. Mexico) 5
RIAA (1929) 516.

Mexican soldiers killed Caire, who was a French national, in Mexico during a
revolution after refusing to accede to their demands to give them money. The
killers were a major and a captain, aided by a few privates. The relevant question
for the Claims Commission was: what was ‘the responsibility of Mexico for
actions of individual military personnel, acting without orders or against the wishes
of their commanding officers and independently of the needs and aims of the
revolution’. The Presiding Commissioner stated:

“I should like to make clear first of all that I am interpreting the said
principles of state responsibility for the acts committed by its public officials
in accordance with the “objective responsibility” of the State, that is
responsibility for the acts of the officials or organs of a State, even in the
absence of any “fault” of its own. …. From this it is clear that in the
hypothesis under consideration the international responsibility of the State is
purely objective in character, and that it rests on an idea of guarantee, in
which the subjective notion of fault plays no part.

But in order to be able to admit this so-called objective responsibility of the

State for the acts committed by its public officials or organs outside their
competence, they must have acted at least to all appearances as competent
officials or organs, or they must have used powers or methods appropriate to
their official capacity”.

Also read Corfu Channel Case [Reproduced in Harris]

Fault or Subjective Theory

According to the Fault or Subjective theory, responsibility arises when the
commission of the prohibited act is accompanied by some degree of intention or
negligence. See below The Home Missionary Society Claim (U.S. v. Great Britain
(1920) 6 RIAA 42.

In 1898 the collection of a “hut tax” imposed by Great Britain on the natives of the
Protectorate of Sierra Leone sparked off a revolt on April 27. This revolt lasted for
several days. In the course of the rebellion Society’s missions were destroyed or

32
damaged and some missionaries were murdered. The U.S. brought a claim against
Britain.

The contention of the U.S. was that the revolt was the result of the imposition and
collection of the ‘hut tax” and that the British knew the existence of deep local
resentment of the measure and the danger it posed, but failed to take proper steps
for the maintenance of law and order and the protection of life and property. This
neglect led to the injuries that the missionaries suffered. The Tribunal dismissed
the claim.

The Arbitrators found as follows:

“It is a well-established principle of international law that no government

can be held responsible for the act of rebellious bodies of men committed in
violation of its authority, where it is itself guilty of no breach of good faith,
or of no negligence in suppressing insurrection. The good faith of the
British Government cannot be questioned, and as to the conditions
prevailing in the Protectorate there is no evidence to support the contention
that it failed in its duty to afford adequate protection for life and property.

Further, though it may be true that some difficulty might have been foreseen,
there was nothing to suggest that it would be more serious than is usual and
inevitable in a semi-babarous and only partially colonised protectorate, and
certainly nothing to lead to any apprehension of widespread revolt”.

See also the Corfu Channel Case (Merits) U.K. v. Albania (ICJ Rep 1949, 4.
Reproduced in Harris 5th Ed. p. 494. Read the extract from the judgement,
including the dissenting opinion of Judge Krylov.

The nature of state responsibility

The prevailing view was aptly put by Judge Huber in the Spanish Zone of Morocco
Claim Case (1925) 2 RIAA 615 as “Responsibility is the corollary of a right. All
rights of international character involve international responsibility”. Similarly in
the Chorzow Factory (Claim for Indemnity) Case (Germany v. Poland) PCIJ
(1928), the Court stated as follows:

“The Court observes that it is a principle of international law, and even a

general principle of law, that any breach of an engagement involves an
obligation to make reparation. Reparation is the indispensable complement

33
 of a failure to apply a convention, and there is no necessity for this to be
stated in the convention itself”.

See the International Law Commission Draft Articles on State Responsibility,

particularly Articles 1, 3, 4 and 19. [Attached to the notes].

Attribution (Imputability)
The general rule is that a state is liable only for its own acts and omissions. In this
context, the state is identified with its governmental apparatus, not the population
as a whole. For example, if the police attack a foreigner, the state is liable; if a
private person attacks a foreigner, the state is not liable. The governmental
apparatus of a state includes the legislature, executive, judiciary, and all local and
central government authorities.

Acts of public officials

A state is liable for the acts of its officials only if those acts are ‘imputable’ or
attributable to the state. However, the idea of imputability creates difficulties
where officials exceed or disobey their instructions. There is authority for the
proposition that a state is liable for the acts of its officials, even when they exceed
or disobey their instructions, provided that they are acting with apparent authority
or that they are abusing powers or facilities placed at their disposal by the state.
See Southern Pacific Properties (Middle East) Ltd., v. Arab Republic of Egypt 32
ILM (1993) 933 International Centre for the Settlement of Investment Disputes

Southern Pacific entered into a contract with Egypt to develop land for tourism
around the sites of the Pyramids in Giza. There was considerable opposition in
Egypt, especially because of the possibility of disturbance of undisturbed
antiquities. Egyptian authorities withdrew Southern Pacific’s permission to
develop the site. The issue fell to be decided in accordance with international legal
principles because the contract provided for arbitration by the ICSID. Egypt
claimed, inter alia, that certain acts of Egyptian officials were null and void under
Egyptian law and could not therefore be attributable to the State itself. The
Tribunal stated as follows:

“Whether legal under Egyptian law or not, the acts in question were acts of
Egyptian authorities, including the highest executive authority of the
Government. These acts, which are now alleged to have been in violation of
the Egyptian municipal legal system, created expectations protected by
established principles of international law. A determination that these acts
are null and void under municipal law would not resolve the ultimate

34
 question of liability for damages suffered by the victim who relied on the
acts. If municipal law does not provide a remedy, the denial of any remedy
whatsoever cannot be the final answer.

The principle of international law which the Tribunal is bound to apply is

that which establishes the international responsibility of States when
unauthorised or ultra vires acts of officials have been performed by state
agents under cover of their official character. If such unauthorised or ultra
vires acts could not be ascribed to the state, all state responsibility would be
rendered illusory.

The practice of states has conclusively established the international

responsibility for unlawful acts of state organs, even if accomplished outside
the limits of their competence and contrary to domestic law”.

Also refer to the Caire Claim (France v. Mexico) 5 RIAA (1929) 516 discussed
under Risk or Objective theory or responsibility.
See Articles 5, 6, 8 10, 11, 12, and 13 of the International Law Commission Draft
Articles on State Responsibility. [Attached to notes].

Acts of private individuals

In principle a state is not liable for the acts of private individuals unless they were
in fact acting on behalf of the state or exercising elements of governmental
authority in the absence of government officials and under the circumstances
which justified them in assuming such authority. However, such acts of
individuals may by accompanied by some act or omission on the part of a state for
which the state is responsible. For example:

a) Encouraging individuals to attack foreigners;

b) Failing to take reasonable steps to prevent the individuals;
c) Obvious failure to punish the individuals;
d) Failure to provide the injured foreigner with an opportunity of obtaining
compensation from the wrongdoers in local courts—an example of ‘denial
of justice’;
e) Obtaining some benefit from the individual’s act, e.g. keeping the looted
property.
f) Express ratification of the individual’s acts.

United States Diplomatic and Consular Staff in Tehran Case (United States v. Iran
ICJ Rep (1980) 3. Following the overthrow of Shah Reza Pahlevi, a close ally of

35
the United States, and the establishment of the Islamic Republic of Iran under the
regime of Ayatollah Khomeini, on 4 November 1979, demonstrators attacked the
American embassy in Tehran. Iranian security forces did not intervene, although
they were called upon to do so. The embassy was invaded, its personnel and
visitors were taken hostage and the archives were ransacked. The matter finally
was brought before the International Court of Justice. Iran refused to participate in
the proceedings. The Court stated as follows:

“The events which are the subject of the United States’ claims fall into two
phases; which it will be convenient to examine separately.

The first of these phases covers the armed attack on the United States
Embassy by militants on 4 November 1979, the overrunning of its premises,
the seizure of its inmates as hostages, the appropriation of its property and
archives and the conduct of the Iranian authorities in the face of those
occurrences. No suggestion has been made that the militants, when they
executed their attack on the Embassy, had any form of official status as
recognised “agents” or organs of the Iranian State. Their conduct in
mounting the attack, overrunning the Embassy and seizing its inmates as
hostages cannot, therefore, be regarded as imputable to that State on the
basis of that. Their conduct might be considered as itself directly imputable
to the Iranian State only if it were established that, in fact, on the occasion in
question the militants acted on behalf of the State, having been charged by
some competent organ of the Iranian State to carry out a specific operation.
The information before the Court does not, however, suffice to establish
with the requisite certainty the existence at that time of such a link between
the militants and any competent organ of the State.

The Second phase of the events which are the subject of the United States’
claims comprises of the whole series of the fact which occurred following
the completion of the occupation of the United States Embassy by militants,
and the seizure of the Consulates at Tabriz and Shiraz. The occupation
having taken place and the diplomatic and consular personnel of the United
States’ mission having been taken hostage, the action required of the Iranian
Government by the Vienna Conventions and by general international law
was manifest. Its plain duty was at once to make every effort, and to take
every appropriate step, to bring these flagrant infringements of the
inviolability of the premises, archives and diplomatic and consular staff of
the United States Embassy to a speedy end, to restore the Consulates at

36
 Tibriz and Shiraz to the United States control and in general to re-establish
the status quo and to offer reparation for the damage.

The approval given to these facts by the Ayatollah Khomeini and other
organs of the Iranian State, and the decision to perpetuate them, translated
continuing occupation of the Embassy and detention of the hostages into acts
of that State. The militants, the authors of and the jailers of the hostages,
had now become agents of the Iranian State for whose acts the State itself
was internationally responsible”.

Acts of successful revolutionary movements

Where a revolution leads to the establishment of a new government the State is
held responsible for the acts of the overthrown government in so far as the latter
maintained control of the situation. The successor government is also held
responsible for the acts imputable to the revolutionary movement, which
established it, even if those acts occurred prior to its establishment, as a
consequence of the continuity existing between the new organisation of the State
and the organisation of the revolutionary movement.

Acts of unsuccessful, or ongoing, revolutionary movements or secessionists

A state on whose territory an insurrection occurs is not responsible for loss or
damage sustained by foreigners unless it can be shown that the Government of that
state failed to provide the standard of protection, either by treaty, or under general
customary law, as the case may be.

Failure to provide the standard of protection required entails the state’s

international responsibility for the loss suffered, regardless of whether the damages
occurred during an insurgents’ offensive act [or] resulting from governmental
insurgency activities.

See Articles 14 & 15 of ILC Draft Articles of State Responsibility

Enforcement of responsibility

Capacity to bring a claim

a) General interest in a matter

37
The existence of a general interest in a subject matter entitles a state to bring a
claim. See South West Africa Cases (Ethiopia v. South Africa, Liberia v. South
Africa) (Preliminary Objections) ICJ Rep 1962, 319.

An application was brought by Ethiopia and Liberia, as members of the United

Nations against South Africa, alleging that South Africa was not acting in
accordance with the Mandate it had been given by the League of Nations (as later
assumed by the United Nations). South Africa objected to the Court having
jurisdiction to hear the case on the ground, inter alia, that Article 7 of the Mandate
did not give the applicants any standing to bring a claim. The majority of the court
rejected this objection. The Court stated:

“International law has long recognised that States may have legal interests in
matters which do not affect their financial, economic, or other “material”, or
say “physical” or “tangible” interests. One type of illustration of this
principle of international law is to be found in the right of a State to concern
itself, on general humanitarian grounds, with atrocities affecting human
beings in another country”.

Note, however, that by the time the case came up for consideration on the merits,
the composition of the Court had changed and by a casting vote of the President,
the Court held that the Applicants had no interests to bring the claim. See South
West Africa Cases (Ethiopia v. South Africa, Liberia v. South Africa) (Second
Phase) ICJ Rep 1966, 6.

b) Diplomatic protection: the nature of a State’s claim

The principle was stated by the PCIJ in the Panevezys-Saldutiskis Railway Case
(Eastonia v. Lithuania) PCIJ (1939) No. 76 as follows:

“The international rule of law is that in taking up the case of one of its
nationals, by resorting to diplomatic action or international judicial
proceedings on his behalf, a State is in reality asserting its own right, the
right to ensure in the person of its nationals respect for the rules of
international law. This right is necessarily limited to intervention on behalf
of its own nationals because, in the absence of a special agreement, it is the
bond of nationality between the state and the individual, which alone confers
upon a state the right of diplomatic protection.

The rule is that as the state brings an international claim for its own injury, it is
under no obligation to pay any reparation received to the national actually injured.

38
See also Mavromatis Concessions Case, Greece v. U.K. (Jurisdiction) 1924 PCIJ
[reproduced in Harris]

c) Diplomatic protection of natural persons: nationality of claims

Diplomatic protection is limited to a state’s own nationals. In the Nottebohm Case
(Liechtenstein v. Guatamala) ICJ Rep 1955, 4;

L instituted proceedings against Guatemala, seeking a declaration by the Court that

in 1943 G had unlawfully expelled, and seized the property of Mr. Nottebohm,
who had been naturalised under the laws of L. Nottebohm was born in Germany in
1881 and had German nationality until his naturalisation by L. In 1905 he went to
G, where he resided and conducted his business activities until 1943, although he
occasionally went to Germany, and a few times to L, on holiday. He visited L in
October 1939, one month after the outbreak of WW II, and applied there for
naturalisation. G’s main objection was that L’s claim was inadmissible, as L could
not extend diplomatic protection to Nottebohm in a claim against G. The Court
upheld G’s objections.

“According to the practice of states, to arbitral and judicial decisions and to

the opinions of writers, nationality is a legal bond having as its basis a social
fact of attachment, a genuine connection of existence, interests and
sentiments, together with the existence of reciprocal rights and duties. It
may be said to constitute the juridical expression of the fact that the
individual upon whom it is conferred, either directly by the law or as the
result of an act of the authorities, is in fact more closely connected with the
population of the state conferring nationality than with that of any other
state. Conferred by a state, it only entitles that state to exercise protection
vis a vis another state if it constitutes a translation into juridical terms of the
individual’s connection with the state which has made him its national”.

d) Diplomatic protection of legal persons: nationality

The general principle is that a body corporate has the nationality of the state of
incorporation. It is that state which can espouse a claim on behalf of such a
corporation. However, where it is the state of incorporation that had acted against
the corporation, then the state of the majority of its shareholders, if that is different
may espouse a claim on behalf of those shareholders.

In the Barcelona Traction Case (Belgium v. Spain) (Second Phase) ICJ Rep 1970,
3; Belgium brought a claim on behalf of its nationals, who comprised the vast
majority of shareholders in the Barcelona Traction Company limited, a company

39
incorporated in Canada. This company had been affected by acts of the Spanish
authorities. The Court upheld the Spanish objections to Belgium’s ability to bring
the claim. The Court stated:

“In allocating corporate entities to states for the purposes of diplomatic

protection, international law is based, but only to a limited extent, on an
analogy with the rules governing the nationality of individuals. The
traditional rule attributes the rights of diplomatic protection of a corporate
entity to the state under the laws of which it is incorporated and in whose
territory it has its registered office. These two criteria have been confirmed
by long practice and by numerous international instruments”.

Attempts have been made to limit the situations where a state can intervene, by
diplomatic protection of its nationals in a contractual dispute between a State and a
non-national. This has been done through what has become known as the ‘Calvo
Clause’ (named after the Argentinean lawyer and statesman who invented it) It is
a clause in a contract, usually in terms to the effect that ‘under conditions shall the
intervention of foreign diplomatic agents be permitted, in any matter related to this
contract’.

In the North American Dredging Company Claim 4 RIAA (1926) 26, the Mexico-
United States General Claims Commission said that the clause meant that the terms
of the contract were binding on the non-national, but did not prevent an application
by him to his state for protection against violations of international law arising
from his contract or otherwise. It also did not, and could not prevent a state
bringing diplomatic protection itself, as that was a right of a sovereign state.

States, however, can place limitations on the right of diplomatic protection by

specific agreement between states. For example, the Convention on the Settlement
of Investment Disputes between States and Nationals of Other States 1966 (ICSID
Convention) provides as follows:

Article 27 (1)

“No Contracting State shall give diplomatic protection, or bring an

international claim, in respect of a dispute which one of its nationals and
another Contracting State shall have consented to submit or shall have
submitted to arbitration under this Convention, unless such other
Contracting State shall have failed to abide by and comply with the award
rendered in such a dispute”.

40
Exhaustion of local remedies
An injured individual or company must exhaust remedies in the courts of the
Defendant State before an international claim can be brought on his behalf. Local
remedies need not be exhausted when it is clear in advance that the local courts
will not provide redress for the injured individual. This rule is said to originate
from the principle of equality of states which requires that the state responsible for
an international wrong first must be given an opportunity to redress the wrong via
its own legal system.
In the Norwegian Loans Case (France v. Norway), ICJ Rep (1957) 9, France
brought a claim on behalf of its nationals who were holders of Norwegian bonds.
Norway objected to the action on the ground, inter alia, that remedies in the
Norwegian courts had not been exhausted. In a separate opinion judge Lauterpacht
stated:

“The requirement of exhaustion of local remedies is not a purely technical or

rigid rule. It is a rule which international tribunals have applied with a
considerable degree of elasticity. In particular, they have refused to act upon
it in cases in which there are, in fact, no effective remedies available owing
to the law of the state concerned or conditions prevailing in it.

The following seems to be accurate principle on the burden of proof on the

subject. (1) As a rule, it is for the plaintiff state to prove that there are no
effective remedies to which recourse can be had; (2) no such proof is
required if there exist legislation which on the face of it deprives the private
claimants of a remedy; (3) in that case it is for the defendant state to show
that, notwithstanding the apparent absence of a remedy, its existence can
nevertheless reasonably be assumed; (4) the degree of burden of proof thus
to be adduced ought not to be so stringent as to render the proof unduly
exacting”.

In the Ambatielos Arbitration (Greece v. United Kingdom) 12 RIAA (1956) 83, a

Greek shipowner, Ambatielos, contracted to buy some ships from the British
government and later accused the British government of breaking the contract. In
the litigation, which followed in the English High Court, Ambatielos failed to call
an important witness and lost; the Court of Appeal dismissed his appeal. When
Greece subsequently made a claim on his behalf, the arbitrators held that
Ambatielos had failed to exhaust local remedies because he had failed to call a
vital witness and because he had failed to appeal from the Court of Appeal to the
House of Lords.

41
In the Interhandel Case (Switzerland v. United States) ICJ Rep. (1959) 6, a Swiss
company had its assets seized in the United States during WW II on the grounds of
its connection with the German company I.G. Farben. After 9 years of
unsuccessful litigation in the US courts, the US State Department told the Swiss
company that its case in the US was hopeless. Switzerland started proceedings
against the US in the ICJ, but while the case was pending before the ICJ, the US
Supreme Court ordered a new trial of the Swiss company’s action against the US
authorities.
The Court dismissed the Swiss claim on the grounds that local remedies had not
been exhausted.

Defences to responsibility
See ILC Draft Articles 29-35 [attached to notes]
Also read the Rainbow Warrior Arbitration (New Zealand v France) 82 ILR
(1990) 499.

TREATMENT OF ALIENS
One of the most important aspects of state responsibility concerns the obligations,
which a state owes to nationals of other countries within its territory. Thus,
mistreatment of these nationals by organs or officers of the state may give rise to
responsibility on the international plane. This will arise out of every incident in
which a non-national is harmed, but applies when the Host State has fallen below
the standard of treatment which international law requires it to show to aliens.

Such harm to a non-national may be directly through an act or omission

attributable to the state which causes physical or economic harm, or indirectly
through a ‘denial of justice’ where non-nationals are prejudiced in their attempts to
obtain a national law remedy against any other party. When a state fails to meet
the minimum standard required by international law, the state of nationality of the
non-national may exercise on options to bring an action on the international plane.

In the Neer Claim (United States v. Mexico) 4 RIAA (1926) 60, Mr. Neer, a
national of the United States, was working in Mexico when he was stopped by
armed men who then shot him. It was claimed that the Mexican authorities were
not diligent in their investigations into the murder and that they should pay
damages to Neer’s family. The Commission rejected this. It found as follows:

“Without attempting to announce a precise formula, it is in the opinion of

the Commission possible to hold (first) that the propriety of governmental
acts should be put to the test of international standards, and (second) that the

42
 treatment of an alien, in order to constitute an international delinquency,
should amount to an outrage, to bad faith, to wilful neglect of duty, or to
insufficiency of governmental action so far short of international standards
that every reasonable and impartial man would readily recognise its
insufficiency”.

Treatment of alien property

The general rule is that a state may expropriate or nationalise property belonging to
non-nationals. There are competing views as to how to determine compensation.
There are two views. Each recognises the obligation to pay compensation, but
there are differences as to the standard for determining the amount of
compensation (whether the standard is ‘prompt, adequate and effective’ or
‘appropriate’), the applicable law for deciding the amount (national law,
international law or a combination) and finally who decides it (the state of the
injured non-national, the state nationalising or an arbitral body)?

Most developing countries favour appropriate compensation, while industrialised

capital exporting countries favour prompt, adequate and effective.

43
TOPIC 6 The Law of Treaties

Definitional Issues
As we noted in Topic 2, Article 38 of the Statute of the International Court of
Justice provides as follows:
2. The Court, whose function is to decide in accordance with international law
such disputes as are submitted to it, shall apply:
(e) international conventions, whether general or particular, establishing
rules expressly recognised by the contesting states;
(f) international custom, as evidence of a general practice accepted as
law;
(g) the general principles of law recognised by civilized nations;
(h) subject to the provisions of Article 59, judicial decisions and the
teachings of the most highly qualified publicists of the various
nations, as subsidiary means for the determination of rules of law.

Treaties are the “international conventions” mentioned in Article 38(a) above. So

we know that treaties are an important source of international law. But what are
treaties anyway?

Vienna Convention on the Law of Treaties 1969

Article 2 Use of Terms
2. For the purposes of the present Convention
(b) ‘treaty’ means an international agreement concluded between States in
written form and governed by international law, whether in a single
instrument or in two or more related instruments and whatever its
particular designation.
Case concerning Maritime Delimitation and Territorial Questions between Qatar
and Bahrain (Qatar v. Bahrain) (Jurisdiction – First Phase) ICJ Rep 1994 112,
International Court of Justice.

The dispute related to competing claims of sovereignty over islands, shoals and
maritime areas between these two Gulf States. The first aspect of the dispute to be
considered by the Court was whether it had jurisdiction to decide the case. The
basis of jurisdiction revolved around whether exchanges of letters between the
heads of each State – by which it was agreed to submit the dispute to the Court –
were treaties and so binding in international law. The court held that it had
jurisdiction. The parties agreed that the exchanges of letters of December 1987
constitute an international agreement with binding force in their mutual relations.
Bahrain however maintained that the Minutes of 25 December 1990 were no more

44
than a simple record of negotiations, and did not rank as an international
agreement, and could therefore, not serve as a basis for the jurisdiction of the
Court.

The Court stated as follows:

“The Court would observe, in the first place, that international agreements
may take a number of forms and be given a diversity of names, [Article 2,
paragraph (1)(a), of the Vienna Convention on the Law of Treaties of 23
May 1969”]….. Accordingly, and contrary to the contentions of Bahrain,
the Minutes are not a simple record of a meeting, they do not merely give an
account of discussions and summarise points of agreement and
disagreement. They enumerate the commitments to which the Parties have
consented. They thus create rights and obligations in international law for
the Parties. They constitute an international agreement.”

“The Court concludes that the Minutes of 25 December 1990, like the
exchanges of letters of December 1987, constitute an international
agreement creating rights and obligations for the Parties”.

There are two main types of treaties: namely bilateral (between two parties) and
multilateral (being treaties between more than two parties).

The law of treaties deals with the rules such as those governing the formation of
treaties, their entry into force, limitations (called reservations) which parties may
place on their consent to be bound by a treaty, interpretation, suspension and
termination, etc.

Also other designations are used, for example ‘convention’, ‘protocol’, ‘charter’,
‘covenant’ or ‘agreement’. As the definition indicates, the particular designation
does not matter.

This law is codified in the Vienna Convention on the Law of Treaties 1969. This
Convention only deals with treaties concluded between states. There are treaties
concluded between states and international organisations or between international
organisations. In such cases, a different regime applies—the Vienna Convention
on the Law of Treaties Between States and International Organisations, 1986.

Note that there is large body of agreements between states and private entities,
mainly dealing with commercial matters. The international Court of Justice has

45
decided that the law of treaties does not apply to these agreements, because these
agreements do not regulate the relations between governments. See the Anglo-
Iranian Oil Case (United Kingdom v. Iran) (Preliminary Objection) ICJ Rep 1952,
93.

Unilateral Statements
Unilateral statements made by states through their representatives’ can sometimes
create legally binding obligations for states. These unilateral statements, no doubt,
are international agreements. But, they are not treaties under the Vienna
Convention of 1969! Why not? See for example in the Nuclear Test Cases
(Australia v. France and New Zealand v. France) Merits ICJ Rep 1974 253.
Australia and New Zealand brought proceedings against France arising from
nuclear tests conducted by France in the South Pacific. Before the Court had an
opportunity to hear in full the merits of the case, statements were made by the
President, Defence Minister and other French officials indicating that the 1974
tests would be the last by France and that France would no longer conduct
atmospheric nuclear tests.

The Court held by nine votes to six that, due to these statements by France, the
claim of Australia and New Zealand no longer had any object and must be
discontinued.

“It is well-recognised that declarations made by way of unilateral acts,

concerning legal or factual situations, may have the effect of creating
obligations. Declarations of this kind may be, and are often very specific.
When it is the intention of the State making the declaration that it should
become bound according to its terms, that intention confers on the
declaration the character of a legal undertaking, the state being thenceforth
legally required to follow a course of conduct consistent with the
declaration. An undertaking of this kind given publicly, and with an intent
to be bound, even though not made within the context of international
negotiations, is binding”.

But see the Frontier Dispute Case (Burkina Faso v. Mali) (1986) ICJ Rep 554.
Prior to this case being commenced before the Court, the parties had agreed that
the Mediation Commission of the OAU would establish the delimitation of the
frontier between the two states. The President of Mali said in an interview on
April 11, 1975 that ‘Mali extends over 1,240,000 square kilometres, and we cannot
justify fighting for a scrap of territory 150 kilometres long. Even if the OAU
Commission decides objectively that the frontier line passes through Bamako, my

46
government will comply with the decision’. Burkina Faso sought to rely on this
unilateral statement as being binding in law on Mali. Mali felt otherwise.

The Court on the facts there are no grounds to interpret the declaration made by the
President of Mali as a unilateral act with legal implications in regard to the present
case.

Note also that the Court referred to its earlier decision in the Nuclear Test Case,
but concluded that the facts and context were different.

Finally we shall mention the principle of Pacta sunt servanda (the rule that treaties
in force are binding upon the parties and must be performed in good faith which is
codified in Article 26 of the Vienna Convention on the Law of Treaties. This rule
is widely acknowledged as the fundamental principle of the law of treaties.

The principle can be traced to ancient times. In Deuteronomy the laws of war for
the Jewish conquest of Canaan are set out as follows: ‘When you draw near to a
city to fight against it, offer terms of peace to it…But in the cities that the Lord
your God gives you for an inheritance, you shall save nothing that breathe, but you
shall utterly destroy them, the Hivites as the Lord God has commanded; that they
may not teach you to do according to all their abominable practices…[Deut. 20:10-
11. 15-18]

However, in the book of Joshua, we are told that the Gibeonites, a subgroup of the
Hivites, presented themselves to Joshua as having come from a far country. Based
on this presentation, Joshua made peace with them, swearing to them by the Lord.
Later the deception was revealed. The leaders let them live, even though that
conflicted with the command by God to kill—the leaders argued ‘We have sworn
to them by the Lord, the God of Israel, and now we may not touch them lest wrath
be upon us, because of the oath which we swore to them’. See Joshua Chap. 9.
Article 27 of the Vienna Convention states the general rule that a party may not
invoke the provisions of its internal law as justification for its failure to perform a
treaty. [See exception in Article 46].

VIENNA CONVENTION ON THE LAW OF TREATIES 1969

As previously noted, the Vienna Convention on the Law of Treaties 1969 is the
principal instrument, which governs the law of treaties. It entered into force on 27
January 1980, upon the deposit of the 35th instrument of ratification. The
provisions of the Convention are binding only on the parties to it. Also its
provisions are applicable only to treaties entered into subsequent to its entry into

47
January 27, 1980 (Article 4).

Although the Vienna Convention is a treaty, international judicial and arbitral

bodies as well as scholars and practitioners agree that its principles codify
customary law. For example in the Fisheries Jurisdiction Case (United Kingdom
v. Iceland), ICJ Rep 1973, 3 at 18, the Court stated:

“International law admits that a fundamental change in the circumstances

which determined the parties to accept a treaty, if it has resulted in a radical
transformation of the extent of obligations imposed by it, may, under certain
conditions, afford the party affected a ground for invoking the termination or
suspension of the treaty. This principle, and the conditions and exceptions
to which it is subject, have been embodied in Article 62 of the Vienna
Convention on the Law of Treaties, which may in may respects be
considered as a codification of existing customary law on the subject of the
termination of a treaty relationship on account of change of circumstances”.

In the Advisory Opinion on the Legal Consequences for States of the Continued
Presence of South Africa in Namibia (South West Africa) Notwithstanding Security
Council Resolution 276 (1970) (Namibia Case) ICJ Rep 1971, 16, 47, the Court
stated:

“The rules laid down by the Vienna Convention on the Law of Treaties
concerning termination of a treaty relationship on account of breach (Article
60) may in may respects be considered as a codification of existing
customary law”.

GENERAL PRINCIPLES OF THE CONVENTION

a) Formation / Conclusion of treaties

Every state has capacity to conclude treaties (Article 6).
Since states act through their representatives, a duly authorised rep of a state must
show Full Powers (Article 7).
Full Powers is defined in Article 2(1)(c) as ‘a document emanating from the
competent authority of a State designating a person or persons to represent the
State for negotiating, adopting or authenticating the text of a treaty or expressing
the consent of a State to be bound by a treaty, or for accomplishing any other act
with respect to a treaty’.

Acts performed by a person without authority can be subsequently confirmed by

48
the state (Article 8).

States can express their consent to be bound by a treaty in different ways. It could
be by way of signature (Article 12); ratification (Article 14) or by accession (when
the state is not negotiating state or a signatory to the treaty) (Article 15).

b) Entry into force

A treaty comes into force in accordance with Article 24—in a manner determined
by its terms; when all the negotiating parties have expressed their consent to be
bound; when a state expresses its consent to be bound by a treaty on a date after the
treaty has already entered into force, then the treaty enters into force for the said
state on that date, except otherwise provided by the treaty.

Note that even before a treaty enters into force, the provisions relating to
formalities and other matters, which necessarily apply before entry into force,
apply from the date the text is adopted (Article 24(4).

Article 18 provides that a treaty has some effect after signature, but before entry
into force. As many multilateral treaties take many years to get all the required
signatures and ratification to enter into force, Article 18 obliges states not to defeat
the object and purpose of the treaty between their signature or expression of
consent to be bound and entry into force of the treaty.
Article 18 applies also to situations where a state has ratified a treaty, but for any
other reasons the treaty is not in force.

c) Treaties and third states

The general rule is that treaties do not create obligations or rights for third states,
without the third state’s consent (Article 34). This principle finds expression in the
maxim pacta tertiis nec nocent nec prosunt.

There are exceptions to this general rule as follows:

1. A treaty may impose an obligation on a third state if the parties intended the
treaty provision to have that effect and if the third state expressly accepts
that obligation in writing (Article 35).

2. A treaty may confer rights on a third state, or to a group of states to which

the third state belongs, or to all states, and the third state assents. Unless the

49
 contrary is indicated by the assent shall be presumed, unless the treaty
provides otherwise (Art. 36).

3. Obligations imposed by treaty on third states may be modified or revoked

only with the consent of the parties and the third state, unless the treaty
provides otherwise (Article 37(1)).
4. Rights conferred on a third state by treaty may, where such rights were
intended to be revocable or subject to modification with the consent of the
third state, be modified or revoked only with the consent of the third state
(Article 37(2)).

5. The United Nations Charter (which is a treaty) imposes obligations on non-

parties. Article 2(6) of the UN Charter provides: ‘The Organization shall
ensure that States which are not Members of the United Nations act in
accordance with its Principles so far as may be necessary for the
maintenance of international peace and security’. In practice non-parties
have complied with the UN Charter. For example, Switzerland, which is not
a party to the Charter, acted consistently with the Security Council
resolutions imposing economic sanctions against Iraq during the Gulf War.

6. A treaty provision shall be binding on a third state when it has become

binding as a principle of customary international law, even if the third state
is not a party to the treaty (Article 38). A typical example is the 12-nautical
mile rule on the territorial sea. This rule started as a provision of the 1982
Law of the Sea Convention, Article 3. However, even before the coming
into force of the Convention in 1994, so many states, including non-
signatory states had adopted the 12-mile rule that it is widely accepted as
representing the customary law of the limit of the territorial sea.

d) Reservations to treaties

Reservations are means by which states accept as many of the rights and
obligations under a treaty as possible, whilst expressly stating that there are some
provisions of the treaty which they cannot accept. It may become necessary for
states to make reservations to a treaty because for political, social, economic, legal,
security or other reasons, certain provisions of a treaty may be seen as
objectionable to a state. For example, the United States made a reservation
concerning the death penalty when it ratified the International Covenant on Civil

50
and Political Rights.

The Vienna Convention on the Law of Treaties, Article 2 defines a reservation as:
“A unilateral statement, however phrased or named, made by a State, when
signing, ratifying, accepting, approving or acceding to a treaty, whereby it
purports to exclude or to modify the legal effect of certain provisions of the
treaty in their application to that State”.

The extent to which reservations to treaties should be allowed in international law

raises the conflict between the need to preserve the integrity of a treaty so that all
parties are equally bound, against the desirability of securing wider participation in
treaties. However, in interpreting reservations, judicial and arbitral bodies strive to
ensure that the object and purpose of a treaty is upheld without compromising a
state’s ability to limit its consent to be bound by a treaty.

Reservations to bilateral treaties pose no problems because only two parties are
involved. In this case, the parties just go back to the negotiation table. On the
other hand, reservations to multilateral treaties can be complicated since some state
parties may accept the reservation, but others may reject it.

The general rule is that a reservation may be made unless it is prohibited by the
treaty or incompatible with the object and purpose of the treaty.

A state may not accept an impermissible reservation. However, if a state makes no

express response to a reservation, then it may be bound by virtue of Article 20(5).

The effect of a valid reservation accepted by a state party to a treaty is to modify

the treaty between it and the reserving state, but does not affect the treaty relations
between the state party and non-reserving states.

See Articles 19-23 of the Vienna Convention on the Law of Treaties.

e) Interpretation of treaties
Articles 31-33 of the Convention govern treaty interpretation. The combine effect
of these provisions is to set out criteria for interpretation. The main principle
governing treaty interpretation is pacta sunt servanda (i.e. treaties are binding on
the parties and must be performed by them in good faith).
Three guidelines are laid down in these provisions.
 First is ‘intentions of the parties’ or ‘founding fathers school’
 Second is the ‘textual’ or ‘ordinary meaning of words’ school.

51
 Third is the ‘aims and objects’ school.

For the ‘intentions’ school, the only legitimate object of interpretation is to

ascertain and give effect to the intentions or presumed intentions of the parties.

For the ‘textual’ school, the prime object is to establish what the text means
according to the ordinary or apparent signification of its terms through the study
and analysis of the text.

For the ‘aims and objects’ school, it is the general purpose of the treaty itself,
which counts. The main object is to establish this general purpose, and construe
the particular clauses in the light of it.

In Golder v. United Kingdom ECHR, Ser A, (1975), No. 18, 14, the European
Court of Human Rights held that:

“In the way in which it is presented in the ‘general rule’ in Article 31 of the
Vienna Convention, the process of interpretation of a treaty is a unity, a
single combined operation; this rule, closely integrated, places on the same
footing the various elements enumerated in the four paragraphs of the
Article”.

f. Invalidity of treaties
A treaty may comply with all the formal procedures mentioned in the preceding
notes, yet may still be unenforceable if it is invalid. The main grounds for
invalidating a treaty are those which affect the capacity of a party to consent
(Articles 46 and 47); those which affect the reality of consent itself (Articles 48-
52); and those which affect the lawfulness of the treaty (Articles 53 and 64).

Treaties may be invalidated on any of the following grounds:

Article 46—where a state’s consent to be bound is expressed in manifest violation

of a provision of its internal law regarding competence to conclude treaties, where
the rule of internal law is one of fundamental importance.
Article 47—where the authority of a state’s representative to express its consent to
be bound was subject to a specific restriction, which was communicated to the
other negotiating states and the representative, omits to comply with the
restrictions.

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Article 48 deals with error, when the error forms an essential basis of its consent to
be bound.

Article 49 deals with where a state’s consent to be bound is induced by the

fraudulent conduct of another negotiating state.

Article 50 deals with where a state’s consent to be bound is procured through the
corruption of its representative directly or indirectly by another negotiating state.

Article 51 deals with the coercion of the representative of a state.

Article 52 deals with coercion of the state itself through the threat or use of force
in violation of the UN Charter.

Article 53 deals with the rule of jus cogens or peremptory norms or international
law. These norms are defined as ‘a norm accepted and recognised by the
international community as a whole as a norm from which no derogation is
permitted and which can be modified only by a subsequent norm of general
international law having the same character’. No states are permitted to enter into
a treaty, which violates any such norms.

Examples are the prohibition on the use of force, prohibition against genocide and
slavery. See Barcelona Traction, Light and Power Company Limited Case
(Belgium v. Spain) (Second Phase) ICJ Rep 1970, 3 (see particularly paragraph 34
of the judgement); Military and Para Military Activities in and against Nicaragua
Case (Nicaragua v. USA) (Merit), ICJ Rep 1986 14 (see paragraph 190 of the
judgement).

Article 64 deals with the emergence of a new rule of jus cogens. Under Article 64
the treaty predates the new peremptory norm. On the other hand, in Article 53, the
peremptory norm predates the treaty. However, in both cases the treaty is invalid.

Note:
a) According to Article 45 of the Convention, a state may lose its right to
invoke a particular ground of invalidity either through express agreement or
impliedly by acquiescence.

b) Article 103 of the UN Charter may also place a limitation on a State

complying with its obligations under a treaty. It provides that ‘in the event
of a conflict between the obligations of the Members of the United Nations

53
 under the present Charter and their obligations under any other international
agreement, the obligations under the present charter shall prevail’.

g) Termination of treaties
The Vienna Convention sets out certain grounds, which enables a party to take
steps to terminate a treaty. As already stated, these grounds could be waived by
the state (see Article 45). Termination is dealt with in Articles 54 to 62.

Note that some of the grounds are less controversial. The main contested grounds
for termination are material breach (Article 60); supervening impossibility of
performance (Article 61) and fundamental change of circumstances (Article 62).

Material Breach—Article 60
Note the following points:
1. Material breaches of bilateral and multilateral treaties produce different
results.

2. Material breach is defined as a repudiation of the treaty not sanctioned by

the Convention or a violation of a provision essential to the
accomplishment of the object and purpose of the treaty.

Supervening Impossibility of Performance—Article 61

Note the following points:
1. The impossibility must be the result of a loss or permanent destruction of an
object indispensable for the performance of the obligations imposed by the
treaty.
2. A party may not invoke the impossibility of performance if the impossibility
is the result of a breach by that party of an obligation either under the treaty
or of any other international obligation owed to any other party to the treaty.

Fundamental Change of Circumstances—Article 62

This principle is expressed in Latin as rebus sic stantibus. It literally means
“things remaining as they are.” The rule applies in the most exceptional
circumstances; otherwise it would be used as an excuse to evade all sorts of
inconvenient treaty obligations. Refer to the Fisheries Jurisdiction Case (United
Kingdom v. Iceland) at page 6 of this notes.

Note the following points:

1. The change must be fundamental, meaning those changes, which imperil the
existence or vital development of one of the parties.

54
2. The parties must not have foreseen the change.
3. The existence of those circumstances constituted an essential basis of the
consent of the parties to be bound by the treaty.
4. Moreover, in order that a change of circumstances may give rise to grounds
for invoking the termination of a treaty it is also necessary that it should
have resulted in a radical transformation of the extent of the obligations still
to be performed. The change must have increased the burden of the
obligations to be performed to the extent of rendering the performance
something radically different from that originally undertaken.
5 Fundamental change of circumstances may not apply in relation to a treaty
establishing a boundary or in cases where the fundamental change is the
result of a breach by that party of an obligation either under the treaty or of
any other international obligation owed to any other party to the treaty

55
TOPIC 7 Sovereign and Diplomatic Immunity

a) Background and Definitional Issues

When we discussed Topic 4—State Territory and Jurisdiction—we noted among

others things the following:

1. We noted that geographical areas separated by borderlines from other areas

and united under a common legal system define the concept of territory. It
includes the air space above the land (although there is no agreement on the
precise upper limit) and the earth beneath it, in theory reaching the centre of
the globe. It also includes up to twelve miles of the territorial sea adjacent to
the coastline.
2. States exercise legislative, executive and judicial activities over such
territories. This exercise of sovereignty is called jurisdictional sovereignty.
Jurisdiction is either ‘prescriptive’ or ‘enforcement’. Prescriptive
jurisdiction refers to a state’s ability to define its own laws in respect of any
mater that it chooses. Enforcement jurisdiction refers to a state’s ability to
enforce the laws it prescribes.
3. We also discussed the rules and principles relating to the exercise of
criminal jurisdiction.

We noted from our earlier discussions that a subject of international law enjoys
certain privileges or rights, both in international and national law. One of the most
important of these is the immunity from legal process enjoyed by States and
international organisations and their representatives in the courts of other States.
This immunity can be divided into (1) State or Sovereign Immunity and (2)
Diplomatic and Consular Immunities.

SOVEREIGN OR STATE IMMUNITY

State or Sovereign Immunity deals with the rules and principles governing the
conditions under which a foreign state may claim freedom from the jurisdiction
(the legislative, judicial and administrative powers) of another state (often called
‘Forum State’). In practice, state or sovereign immunity cases arise mainly on two
levels. First, concerns the immunity of a foreign state from the jurisdiction of the
municipal courts of another state to adjudicate a claim against it, arising from a
contract or tort. Second, it concerns the exemption of a foreign state from
enforcement of a judgement given against it by a municipal court. For example, by
attaching the bank account of its embassy in the Forum State.

56
Principles of Sovereign or State Immunity
There are several theories put forth as the basis of state immunity. The most
widely accepted is that put forward by Chief Justice Marshall in the Schooner
Exchange v. McFaddon 7 Cranch 116 (1812), United States Supreme Court.
Marshall CJ stated:

“The full and absolute territorial jurisdiction being alike the attribute of
every sovereign, and being incapable of conferring extraterritorial power,
would not seem to contemplate foreign sovereigns nor their rights as its
objects. One sovereign being in no respect amenable to another; and being
bound by obligations of the highest character not to degrade the dignity of
his nation, by placing himself or its sovereign rights within the jurisdiction
of another, can be supposed to enter a foreign territory only under express
license, or in confidence that the immunities belonging to his independent
sovereign station, though not expressly stipulated, are reserved by
implication, and will be extended to him”.

The basis of state immunity is expressed in the Latin maxim par im parem non
habet imperium, literally meaning “an equal has no authority over an equal”. In
the past there was a debate about whether immunity was absolute or limited.
Absolute immunity means that a state is immune for all purposes and in all
proceedings. On the other hand, limited or restricted immunity means that a state
is immune only in respect of its ‘sovereign’ acts, (otherwise known as acts juri
imperii) as distinct from ‘private law’ or ‘commercial’ acts (otherwise know as
acts jure gestionis). Contemporary state practice favours restricted or limited
immunity.

The practical effect of the distinction between acts juri imperii and acts jure
gestionis is that there is no immunity for state conduct that is in the realm of
private law. For example if the state is doing business on the market place, it
should be treated as any other actor on the market. Most countries have specific
laws enacted to codify customary or treaty regimes on state immunity. Others rely
on general international law.

Victory Transport Inc. v. Comisaria General de Abasteccimientos y Transpertos 35

ILR 110, United States Court of Appeals

Facts:
The defendants (an organ of the Spanish Government) entered into a charter
agreement with the plaintiffs. An arbitration clause provided for arbitration in

57
New York in the event of a dispute. The defendants claimed State immunity. The
court stated:

“The purpose of the restrictive theory of sovereign immunity is to try to

accommodate the interest of individuals doing business with foreign
Governments in having their legal rights determined by the courts, with the
interest of foreign Governments in being free to perform certain political
acts without undergoing the embarrassment or hindrance of defending the
propriety of such acts before foreign courts. Sovereign immunity is
derogation from the normal exercise of jurisdiction by the courts and should
be accorded only in clear cases. Sovereign acts are generally limited to the
following categories: (1) internal administrative acts, such as expulsion of an
alien; (2) legislative acts, such as nationalisation; (3) acts concerning the
armed forces; (4) acts concerning diplomatic activity; (5) public loans.

I Congreso del Partido [1981] 3 WLR 328, House of Lords.

Facts:
In 1973, two ships, The Marble Islands and The Playa Larga were carrying sugar
to Chile on behalf of Cubazugar, a Cuban State enterprise. While the sugar was in
transit, a right-wing Pinochet overthrew the Allende government of Chile. Cuba
disapproved of the new government. The Playa Larga (essentially owned by
Cuba) was ordered by Cuba to return to Cuba with most of her sugar unloaded, and
The Marble Islands (essentially chartered to Cuba) was ordered to Vietnam where
the sugar was sold. The Plaintiffs, who were the Chilean owners of the sugar,
caused the Congreso, another ship owned by the Cuban Government, to be arrested
in British territorial waters. The application was brought pursuant to an action for
breach of contract to deliver and conversion. Cuba claimed state immunity. The
court stated:

“The relevant exception, or limitation, which has been engrafted upon the
principle of immunity of states, under the so-called “restrictive theory,” arise
from the willingness of states to enter into commercial, or other private law,
transactions with individuals. It appears to have two main foundations: (a) It
is necessary in the interest of justice to individuals having such transactions
with states to allow them to bring such transactions before the courts. (b) To
require a state to answer a claim based upon such transactions does not
involve a challenge to or inquiry into any act of sovereignty or governmental
act of that state. It is, in accepted phrases, neither a threat to the dignity of
that state, nor any interference with its sovereign functions.

58
 When therefore a claim is brought against a state and immunity is claimed it
is necessary to consider what is the relevant act which forms the basis of the
claim: is this an act “jure gestionis” or is it an act “juri imperii”: is it a
“private act” or is it a “sovereign or public act,” a private act meaning in this
context an act of a private law character such as a private citizen might have
entered into.

The conclusion which emerges is that in considering, under the “restrictive”

theory whether state immunity should be granted or not, the court must
consider the whole context in which the claim against the state is made, with
a view to deciding whether the relevant act(s) upon which the claim is based,
should, in that context, be considered as fairly within an area of activity,
trading or commercial, or otherwise of a private law character, in which the
state has chosen to engage, or whether the relevant act(s) should be
considered as having been done outside that area, and within the sphere of
governmental or sovereign activity”.

I Congreso was followed in Lintrell v. United States of America (No. 2) [1994] 4

All ER 203.

Facts:
The plaintiff brought an action against the United States Government alleging
negligent medical treatment. He was a US serviceman, serving on a US airforce
base in the UK. The allegedly negligent medical personnel were also US
servicemen. The US pleaded sovereign immunity. The court decided that the act
of which Mr. Lintrell complains was clearly on the jure imperii side of the line
because of the whole context in which it occurred.

Van Der hurst v. United States 94 ILR 374M, The Netherlands Supreme Court.
Facts:
The plaintiff’s employment at the US Embassy in The Hague was terminated for
security reasons. He sued and the lower court ruled that US could claim state
immunity. The Supreme Court upheld the plea of immunity even though it related
to a contract of employment.

These cases show that the purpose or nature test must be considered in reference to
the background context.
The next two cases deal with enforcement of judgements against foreign
sovereigns.

59
Alcom Ltd. V. Republic of Colombia [1984] 2 WLR 750 House of Lords.
Facts:
The plaintiffs obtained a judgement in default against Colombia, and now sought
to enforce that judgement against monies held in the Colombian Embassy’s
London bank account. The Colombian Ambassador had certified that the monies
in the account were used for the running of the Embassy. The issue was whether
the monies were ‘property’ used for ‘commercial purposes’ within the meaning of
section 13 of the State Immunity Act 1978.

The Court held that the funds could not be attached in satisfaction of the judgement
debt. It went further to say that burden was on the plaintiff to show that the
account was earmarked by the foreign state solely for being drawn upon to settle
liabilities incurred in commercial transactions, as for example issuing documentary
credits in payment of the price of goods sold to the state.

Libyan Arab Socialist People’s Jamahiriya v. Rossbeton SRL ILR 87, 63, Italy
Court of Cassation.
Facts:
Rossbeton was owed money by a Libyan State enterprise. They sought to obtain
an execution against two Libyan aircraft then on Italian territory. Libya pleaded
that the Italian court lacked jurisdiction. The Court therefore considered state
immunity in the context of state immunity against enforcement measures. The
Court decided that it had jurisdiction and that Libya’s claim of immunity must fail.
It stated:

“As a further justification of the modern tendency towards restrictive

jurisdictional immunity, the Court considers that if absolute immunity is not
denied in the context of jurisdiction, then equally execution against the
assets of a foreign state cannot be denied, otherwise the Court’s decision
would lose its power and the present concept of immunity, albeit legally
admitted only in certain cases, would become worthless. The sole limitation
encountered by a private party, once his claim has been successfully
recognised, is the impossibility of instituting attachment proceedings against
assets used for activity jure imperii”.

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Recent Trends in US Courts Regarding Lawsuit Against Foreign
Governments

1. A federal judge in Washington DC ordered Iraq to pay nearly $1 billion

to American soldiers captured and tortured during the first gulf war.
2. Another federal judge ordered Iran to pay $313 million to the children of
an American woman killed in a 1997 suicide bombing at a Jerusalem
market.
3. The President of Venezuela, Hugo Chavez, has been sued in Miami by
relatives of people killed in an antigovernment protest on the streets of
Caracas, Venezuela.

See Alvarez-Machain v. United States & Others, 2003 U.S. Appeal, LEXIS
10949, United States Court of Appeal for the 9th Circuit.

DIPLOMATIC IMMUNITY
Diplomatic and Consular Immunity deal with the personal immunities enjoyed by
representatives of states and by international organisations. All states are both
‘sending states’ (that is, states which send diplomatic missions to foreign
countries) and ‘receiving states’ (that is, states which receive diplomatic missions
from foreign states). As a result, although the rules of diplomatic immunity
sometimes arouse indignation in ordinary people, they are almost always observed
by states, because states have a common interest in preserving the rules.

The modern law on diplomatic immunity is contained in the Vienna Convention of

Diplomatic Relations, 1961. The Convention was adopted by a UN Conference on
Diplomatic Intercourse and Immunities in April 1969, and entered into force in
April 1964. As of January 1995, there were 174 parties to the Convention, making
it one of the most widely ratified multilateral treaties. The Vienna Convention was
enacted under Ghana by Act 148 of 1962.

a) Basis for Diplomatic Immunity

i) Extraterritoriality theory states that the premises of the diplomatic mission

represent a sort of extension of the territory of the sending state. But this
theory was refuted in the English case of Radwan v. Radwan [1973] Family
Division 24. In Radwan it was held that the Egyptian consulate in London
was not a part of the territory of the United Arab Republic of Egypt so that a
divorce obtained there was not obtained “in any country outside the British
Isles” for the purposes of the Recognition of Divorces and Legal Separations

61
 Act 1971.

ii) Representative character theory states that the privileges and immunities
enjoyed by members of diplomatic missions are based on the idea that the
diplomatic mission personifies the sending state.

iii) Functional necessity theory states that privileges and immunities are justified
as being necessary to enable the mission to perform its functions.

b) Vienna Convention—Note these Particular Provisions

 Article 1 –deals with definitions,
 Article 3 deals with the functions of a diplomatic mission,
 Article 9 deals with issues relating to the declaration of a head of mission or
other member as persona non grata,
 Article 22 deals with inviolability of the premises of the mission,
 Article 23 deals with exemptions from taxes in respect of the premises of the
mission
 Article 24 deals with inviolability of the archives and documents of the
missions,
 Article 26 deals with freedom of movement of the members of the mission,
 Article 27 protects official communications and the diplomatic bag,
 Article 29 deals with inviolability of the person of the diplomatic agent,
 Article 31 deals with the immunity from civil and criminal jurisdiction of the
diplomatic agent or member of the diplomatic staff of the mission
 Article 32 deals with waiver of diplomatic immunity,
 Article 33 deals with immunity from social security provisions,
 Article 37 deals with the immunity from civil, criminal other categories of
persons (than the diplomatic agent). For example members of family of the
diplomatic agent, administrative and technical staff of the mission, members of
the service staff of the mission and private servants of members of the mission.
 Article 38 deals with the functional immunity of a diplomatic agent who is a
citizen or permanent resident of the receiving state,
 Article 39 deals with commencement of immunity,
 Article 41 deals with the duty of the all persons enjoying immunities to respect
the laws of the receiving state and non interference in the internal affairs of the
receiving state,
 Article 42 deals with the prohibition on professional practice or any commercial
activity in the receiving state by a diplomatic agent.

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c) Judicial Decisions

See the Arrest Warrant of 11 April 2000 (Democratice Republic of Congo v.

Belgium), decided by the ICJ on 14th February, 2002. (warrant by Belgium Court
against incumbent foreign minister of DRC held by Court to be in violation of
customary international law of immunities of foreign minster)

See also United States Diplomatic and Consular Staff in Tehran Case (United
States v. Iran ICJ Rep (1980) 3. Following the overthrow of Shah Reza Pahlevi, a
close ally of the United States, and the establishment of the Islamic Republic of
Iran under the regime of Ayatollah Khomeini, on 4 November 1979, demonstrators
attacked the American embassy in Tehran. Iranian security forces did not
intervene, although they were called upon to do so. The embassy was invaded, its
personnel and visitors were taken hostage and the archives were ransacked. The
matter finally was brought before the International Court of Justice. Iran refused to
participate in the proceedings. The Court stated as follows:

“The events which are the subject of the United States’ claims fall into two
phases which it will be convenient to examine separately.

The first of these phases covers the armed attack on the United States
Embassy by militants on 4 November 1979, the overrunning of its premises,
the seizure of its inmates as hostages, the appropriation of its property and
archives and the conduct of the Iranian authorities in the face of those
occurrences. No suggestion has been made that the militants, when they
executed their attack on the Embassy, had any form of official status as
recognised “agents” or organs of the Iranian State. Their conduct in
mounting the attack, overrunning the Embassy and seizing its inmates as
hostages cannot, therefore, be regarded as imputable to that State on the
basis of that. Their conduct might be considered as itself directly imputable
to the Iranian State only if it were established that, in fact, on the occasion in
question the militants acted on behalf of the State, having been charged by
some competent organ of the Iranian State to carry out a specific operation.
The information before the Court does not, however, suffice to establish
with the requisite certainty the existence at that time of such a link between
the militants and any competent organ of the State.

The Second phase of the events which are the subject of the United States’
claims comprises of the whole series of the fact which occurred following
the completion of the occupation of the United States Embassy by militants,

63
 and the seizure of the Consulates at Tabriz and Shiraz. The occupation
having taken place and the diplomatic and consular personnel of the United
States’ mission having been taken hostage, the action required of the Iranian
Government by the Vienna Conventions and by general international law
was manifest. Its plain duty was at once to make every effort, and to take
every appropriate step, to bring these flagrant infringements of the
inviolability of the premises, archives and diplomatic and consular staff of
the United States Embassy to a speedy end, to restore the Consulates at
Tibriz and Shiraz to the United States control and in general to re-establish
the status quo and to offer reparation for the damage.

The approval given to these facts by the Ayatollah Khomeini and other
organs of the Iranian State, and the decision to perpetuate them, translated
continuing occupation of the Embassy and detention of the hostages into acts
of that State. The militants, the authors of and the jailers of the hostages,
had now become agents of the Iranian State for whose acts the State itself
was internationally responsible”.

In the first place, these facts constituted breaches additional to those already
committed in paragraph 2 of Article 22 of the Vienna Convention on
Diplomatic Relations which requires Iran to protect the premises of the
mission against any intrusion or damage and to prevent any disturbance of
its peace of impairment of its dignity. Paragraph 1 and 3 of that Article have
also been infringed, and continue to be infringed, since they forbid agents of
the receiving state to enter the premises of a mission without consent or to
undertake any search, requisition, attachment or like measure on the
premises.

See also the Ghanaian cases of Armon v. Kartz [1976] 2 GLR, 121 and Kwarteng
v. Sackey [1984-86] GLRD, para. 19.

CONSULAR IMMUNITY
Like diplomatic agents, consuls also represent their states, but unlike diplomats,
consuls are concerned with non-political relations. Consuls are primarily
concerned with issues affecting the nationals of the sending state, passports, visas
and trade. Consulates could be based in the national capitals as well as in other
towns or cities.

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Consular relations are governed by the Vienna Convention on Consular Relations
1963. The Convention entered into force in 1967, and as of January 1995, there
were 152 parties.

To a very large extent, the Convention assimilates the status of consuls to that of
diplomats, but this is not surprising, because it is becoming increasingly common
nowadays for a state to combine its diplomatic and consular services. Basically
consuls who do not act as diplomats may have the same privileges and immunities
as diplomats, but consular immunity from civil or criminal jurisdiction of the
receiving state’s courts is restricted to official acts. In addition, consuls may
import articles for their personal use, free of duty, only at the time of their first
appointment.

IMMUNITIES OF INTERNATIONAL ORGANIZATIONS

This is usually regulated by treaty. For example the 1946 General Convention on
the Privileges and Immunities of the United Nations, or by the headquarters
agreements concluded with the host state where the organisation is seated.

Note the following with respect of the United Nations as per the 1946 Convention
above-mentioned:

Article 2—UN has complete immunity from all legal process,

Article 3 and 4—UN premises, assets, archives and documents are inviolable,
Article 7—UN is exempt from taxes and customs duties,
Article 18—UN staff are exempt from income taxes on their salaries,
Article 19—UN Secretary General and Assistants Secretaries General have
diplomatic immunity, other staff have limited immunities,

Article 20—UN Secretary General can waive a staff member’s immunity, if it

would be prejudicial to the Organisation.

65
TOPIC 8 Use of Force

Early Period

This period was dominated by the teachings of the Roman Catholic Church, as
expounded in the Just War Doctrine. The most important were found in the
writings of St. Augustine. He wrote as follows:

“Just wars are usually defined as those which avenge injuries, when the nation
against which warlike action is to be directed has neglected either to punish wrongs
committed by its citizens or to restore what has been unjustly taken by it. Further,
that kind of war is undoubtedly just which God Himself has ordained”.

Thus there was a distinction between BELLUM JUSTUM (or Just War) and
BELLUM INJUSTUM (or Unjust War)

League of Nations Era

The Covenant of the League of Nations did not prohibit war or for that matter the
use of force. Article 12(1) of provided as follows:

“Members of the League agree that, should there arise between them any dispute
likely to lead to a rupture, they will submit the matter either to arbitration or
judicial settlement or to inquiry by the Council, and they agree 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”.

The three-month period of delay was intended to allow time for passions to cool
down. It reflected the prevailing view that such a delay might well have broken
the seemingly irreversible chain or tragedy that linked the assassination of the
Austrian Archduke in Sarejevo with the outbreak of war in Europe.

In addition Members agreed not to go to war with Members complying with an

arbitral award or judicial decision. Also, League members agreed not to go to war
with members complying with such an arbitral award or judicial decision or
unanimous report by the Council.

The League system did not, prohibit war or the use of force, but it did set up a
procedure designed to restrict it to tolerable levels.

66
This period was marked by a constant challenge to close the gaps in the League
Covenant in an effort to achieve the total prohibition of war in international law.

The signing of the General Treaty for the Renunciation of War, 1928, commonly
called the Kellogg-Briand Pact [after the then US Secretary of State and French
Foreign Minister] was the boldest attempt to achieve a total prohibition. The Pact
became effective in July 1929.
It contained two substantive articles:

Article I
The High Contracting Parties solemnly declare in the names of their respective
peoples that they 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.

Article II
The High Contracting Parties agree that the settlement or solution of all disputes or
conflicts of whatever nature or of whatever origin they may be, which arise among
them shall never be sought except by pacific means.

It must be noted that the Nuremberg Tribunal relied heavily on the renunciation of
war in the Kellogg-Briand Pact during the trial of Nazi War Criminals.

THE UN CHARTER PERIOD

Article 2(4) states the main prohibition on the use of force or the threat thereof.
Article 2(4) of the Charter of the United Nations provides as follows:

“All Members shall refrain in their international relations from the threat or use of
force against the territorial integrity or political independence of any State, or in
any other manner inconsistent with the Purposes of the United Nations”.

Article 2(7) states the rule of non-interference by the United Nations in matters
within the domestic jurisdiction of member states, except when the UN is acting in
accordance with Charter 7 of the Charter.

Article 2(3) provides that as follows:

“All Members shall settle their international disputes by peaceful means in such a
manner that international peace and security, and justice, are not endangered”.

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Note that Article 2(4) deal with States and Article 2(7) deal with the United
Nations.

In the Nicaragua Case the ICJ decided that the prohibition in Article 2(4) has
become customary law and therefore, binding on non-UN member states.

Exceptions to the Prohibition on the use of Force

Self Defence

Article 51 of the Charter provides as follows:

“Nothing in the present Charter shall impair the inherent right of individual or
collective self-defence if an armed attack occurs against a Member of the United
Nations, until the Security Council has taken the measures necessary to maintain
international peace and security….”.

Meaning, scope, whether limited to armed attack, meaning of collective self-

defence, whether protection of nationals’ abroad in included in self-defence. How
about attacks on former heads of state?

The Caroline Case 2 Moore, A Digest of International Law 409-414 (1906)

The Caroline was an American Ship that had been used by Canadian rebels to
harass the authorities in Canada. At the time Canada was still a British colony.
While it was moored in an American port close to the border, it was attacked by
the British and destroyed. The legality of the action was raised when Great Britain
sought the release of Alexander McLeod, one of the men involved in the attack,
who had been arrested in New York. Webster’s formulation in the exchange of
letters that followed is regarded as the locus classicus of customary law of self-
defence.

{In his August 6, 1842 Letter, Daniel Webster, the American Secretary of State
stated}

“The President see with pleasure that your Lordship fully admits those great
principles of public international law, applicable to cases of this kind, which
this government has expressed; and that on your part, as on ours, respect for
the inviolable character of the territory of independent states is the most
essential foundation of civilisation….[W]hile it is admitted that exceptions

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 growing out of the great law of self-defence do exist, those exceptions
should be confined to cases in which the necessity of that self-defence is
instant, overwhelming, and leaving no choice of means and no moment for
deliberation. It will be for it [Great Britain] to show, also, that the local
authorities of Canada, even supposing the necessity of the moment
authorised them to enter the territories of the United States at all, did nothing
unreasonable of excessive, since the act, justified by the necessity of self-
defence, must be limited by that necessity, and kept clearly within it….”.

There are other benign exceptions or justifications advanced. But none has yet
been formally accepted.

 Humanitarian intervention, e.g. Israel Entebbe in 1976, USA in Iran in 1980

to attempt to free the hostages, USA in Grenada.
 Intervention to support socialism: (The Brezhnev Doctrine)
 Intervention for democracy, Hiati, Panama,
 The right to protect nationals abroad, Grenada
 Intervention by invitation, Grenada
 Intervention to support self-determination, Africa, UNGA Resolutions

UN Collective Security

Article 24—Security Council has primary responsibility for the maintenance of

international peace and security and in performing its functions in that regards it
acts on behalf of Member states.
Article 25 Members agree to carry out the decisions of the Security Council.

Article 39 --"The Security Council shall determine whether a situation constitutes a

threat to international peace and security, a breach of the peace or an act of
aggression, and to take appropriate measures.

Intervention by regional arrangements—Article 52, e.g. ECOMOG, SADC in the

DRC.

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SEMINAR TOPICS

1. Selected Issues in the Law and Practice of Human Rights

Issues to be discussed here include:

What are human rights: (categories 1st, 2nd and 3rd Generation rights as civil and
political rights, economic, social and cultural rights and “Groups rights, e.g. right
to food, to development, etc.

Cultural relativism or generality of human rights. This used to take a great part of
the human rights discourse, but no more.

Global Regimes: Evolution of Legal and Institutional frameworks

Early period, Nuremberg Tribunal, UDHR, ICCPR, ICESCR, plus accompanying

institutions—UN Human Rights Commission, Committee on Human Rights and
their procedures.

Regional Instruments, African, American and European Systems.

2. Outer Space, Terrorism and Hijacking

General Issues in Outer Space law. Relate to general issue of common heritage of
mankind under the UNCLOS of 1982.

What is hijacking? What is terrorism and who is a terrorist? What are the threats
posed by hijacking and terrorism? New trends and role of non nation state entities
in terrorism as well as use of civilian aircraft as missiles. Underlying causes (real
or perceived). War against terrorism- Are we winning?

3. Settlement of Disputes

Article 33 of the UN Charter on pacific settlement of disputes

ICJ system

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